2001MLD711 (PLP)

4. The learned counsel of the appellants submits that learned Additional District Judge was erred in law to decree the suit of the respondent straightaway. The suit can only be decreed straightaway in the following eventuality by virtue of Order 37, rule 2(2), C.P.C.:

(i) Upon the failure of the defendant/petitioner to put in appearance. (ii) Upon his omission to apply for grant of appeal and defend the suit in pursuance thereof. In the present case appellant filed an application for leave to defend which was granted conditionally therefore, Order 37, rule 2(2), C.P.C. is not attracted. In support of his contention he relied upon PLD 1987 Lah. 101, (Muhammad Yousaf's case) in which the following rule was laid down by this Court:-- "

There is no provision for the refusal of grant of leave being equated with an admission of the suit to result in relieving the `plaintiff of his normal obligation to prove his duty to discharge, even upon his defendant having been disabled from defending the suit on account of refusal of leave and hence, suit of the respondent could not be decreed in absence of any evidence adduced to support his claim. The decree so passed by the learned Additional District Judge does not have support from the record. " He further submits that aforesaid judgment is also followed by this Court in Muhammad Aslam's case 1990 CLC 1119. He further submits that original order granted conditionally by the learned Additional District Judge is not sustainable in the eyes of law as per principle laid down by the Hon'ble Supreme Court in PLD 1996 SC 749 (Mien Rafiq Saigal's case). Both the appeals were admitted for regular hearing vide order dated 21-11-1992. The respondent failed to enter appearance in spite of the service, therefore, appeals are decided ex parte.

5. I have given my anxious consideration to the contention of the learned counsel of the appellants and perused the record myself. The judgment relied upon by the learned counsel of the appellant PLD 1987 Lah. 101 (Muhammad Yousaf's case (supra)) was not approved by the Hon'ble Supreme Court in Ahmad Auto's case PLD 1990 SC 497 and the relevant observation is as follows:-- "Reverting to Mr. Shaukat's third submission, it may be observed that in furtherance of the above submission, he has referred to the case of Muhammad Yousaf v. Allah Yar reported in PLD 1987 Lah. 101, in which a learned Single Judge of tile Lahore High Court while construing order XXXVII, Rule 2(2), C.P.C. had inter alia held that where there is refusal to grant leave by the Court the plaintiff would not be relieved of normal obligation to prove his case and that the plaintiff would continue to remain under a duty to discharge the above burden. With due deference to the learned Judge we may point out that the above observation of the learned Single Judge seems to; be not in consonance with the provisions- of Rule 2 of Order XXXVII, C.P.C. which inter alia provides that in case a defendant does not obtain such leave, the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree. Additionally in the instant case the Special Court before passing the judgment and decree had examined the above question and observed that the suit claim was verified on oath, which was not controverted. " The second judgment relied upon by the learned counsel of the appellant Muhammad Adam's case 1990 CLC 1119 is based on the aforesaid judgment of Muhammad Yousaf's case PLD 1987 Lahore 101, therefore, this judgment is not relevant to resolve the present controversy. Even otherwise this judgment was also not approved by the Hon'ble Supreme Court in PLD 1995 SC 362 (Haji Ali Khan & Company's case) and relevant observation is as follows:-- "I would hold, therefore that sub-rule (2,) of Rule 2 applies also to cases in which leave to appear and defend is applied for but is refused with the result that the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree in terms of clauses (a), (b) and (c) of subrule (2) of Rule 2 ' f there be nothing in the allegations of fact in the plaint themselves to disentitle him to it. It must follow that the cases, such as Muhammad Aslam v. Fateh Sher (1990 CLC 1119) in which it has been held that sub-rule (2) of rule 2 does not apply where leave to appear and defend has been applied for and has been refused, were not correctly decided." The judgment of Mian Rafiq Saigal's case (PLD 1969 SC 749) supra is also not applicable and is distinguished on facts and law as in the cited case conditional order was challenged whereas in the present case suit was decreed as the appellants failed to appear and defend the case subsequently and did not provide security as directed by the trial Court. It is settled proposition of law that leave was granted conditionally and the defendant failed to perform the condition then it tantamounts that no leave to defend had been given. The aforesaid proposition of law was considered by the Hon'ble Supreme Court in Haji Ali Khan &-Company's case and laid down the following principle:-- "Now, there can be absence of leave when the defendant does not, despite the service of the prescribed summons upon, enter appearance and apply for leave to defend. Equally clearly there is absence of leave when the defendant has applied for leave but the leave is refused. And, when the leave is granted conditionally or subject to terms, but the defendant fails to perform the condition or fulfil the terms to which the leave is subject, then it becomes a case as if no leave to defend had been given. " In view of what has been discussed above- these appeals have no merit and the same are dismissed. H.B.T./1-37/L Appeals dismissed.