1992 PLP 2161 (CLC)

In this matter conditional leave was granted to defendants Nos.3 and 4 and so also to defendants Nos.1 &

2. Defendants Nos.1 and 2 have failed to furnish security. Consequently the matter was put up‑ for orders against defendants Nos.1 and 2 and defendants No,;.5 to 8, who had not riled any application for leave to defend. On 23‑2‑1992, when the matter came up for hearing, Mr. Hamza I. Ali learned counsel for defendants Nos.3 and 4 submitted that passing of decree against defendants Nog.1, 2 and 5 to 8 be postponed as according to him some of the contentions raised by defendants Nos.3 and 4 go to. the very root of the case, affecting maintainability of the suit against all the defendants. Since the. point raised required consideration, the matter was adjourned for. a date in office. I have heard Mr Hamza I. Ali, learned Advocate for defendants Nos.3 and 4, Mr. Ghulam‑Ali Khokhar for defendants Nos.1 and 2 and Mr: A.S. Pinger for the plaintiff. It is contended by the learned counsel for defendants Nos.3 and 4 that on reading of Order IX Rule 6 with Order IX, Rule 9, C.P.C. the word defendant is to be taken as sole defendant or if there are more than one defendants, then all the defendants together. The submission is that if leave has been granted under Order XXXVII, Rule 2 to one defendant, no decree should be passed against the other defendants or passing of the decree against other defendants should be postponed, till final disposal of the suit. The reason advanced is that the suit, if finally is ordered to be dismissed on the basis of the same promissory note, the decree passed against the other defendants will be in conflict with the decree that may be passed in favour of the contesting defendants to whom leave is granted. Learned counsel for defendants Nos.1 and 2 has contended that under section 2(2) of the Banking Companies (Recovery of Loans) Ordinance, 1979, the provisions of the Code of Civil Procedure have been made applicable including Order XXXVII, C.P.C. According to him since the word "immediately" has not been used in the last sentence of sub‑TUIC (2) of Rule 2 of Order XXXVII, C.P.C., it is not necessary that the plaintiff should be held entitled to decree, immediately on the failure of defendants Nos.1 and 2 to furnish surety. Learned counsel did not elaborate the contention any further. The submission of the learned counsel for defendants Nos.3 and 4 is misconceived. The law‑makers have specifically used different language in Order IX, Rule 11, C.P.C. which provides that where there are more defendants than one, and one or more of them appear and others do not appear, the suit shall proceed and the Court shall, at the time of pronouncing judgment, make such order as it thinks fit with respect to the defendants who do not appear. But in so far as Order XXXVIII is concerned, it provides special procedure to be followed in suits covered by Rule 2(l) thereof. Under the said provision the right to defend the suit, which is generally available in ordinary suits to the defendants, has been taken away and can be availed only when leave has been granted to him to appear and defend the suit, on the application filed by him as required under the law. It is further provided that in default of obtaining such leave or in default of his appearance and defence, in pursuance thereof, the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree. Clauses (a), (b) and (c) of the said sub‑rule (2) provide as to what decree is to be granted. Thus a suit riled under Order XXXVII will attract the other provisions of the Code only when leave has been granted and the defendant after obtaining the leave, appears and defends the suit. If it is not done, the plaintiff is entitled to grant of decree. Where the defendant does not apply for grant of leave or where the leave has been granted conditionally and the condition has not been fulfilled or where the leave has been granted and/or condition has been fulfilled but the defendant does not appear and defend the suit, the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to decree. Thus under Order XXXVII, the defendant is neither proceeded ex parte, nor decree is granted ex parte as is provided under Order IX, Rules 6 and 11, C.P.C. In view of the above stated special procedure prescribed for dealing with the suits covered by Order XXXVII, the general provisions cannot be pressed into service. Learned counsel for the plaintiff has relied on the case of Allied Bank of Pakistan Ltd. v. V.C.Khi1nani PLD 1.984 Kar. 127, wherein Saleem Akhtar, J. (as he then was, now Judge of the Supreme Court) while interpreting the provisions of Order XXXVII, C.P.C. has observed that the aforesaid Order is a self‑contained provision which provides for special summary procedure for the suits, intended to decide cases of such nature in summary and expeditious manner. The admission, under the aforesaid deeming provisions, will be as effective as unqualified admission of the truth of the whole case of the plaintiff, under Order XII, Rule 1 read with Rules 4, 5 or 6, or during examination of the party under Order I Rule 10, or made in interrogatories under Order XI, Rule, 8 or under Order XXIII, Rule 3, C.P.C. or admission made in the pleadings or otherwise. With regard to submission of the learned Advocate that conflicting decrees would follow in case the plaintiff ultimately failed to establish his right to recover the amount on the basis of the promissory note, suffice to observe that a distinction is to be drawn between the decree passed on the basis of the admission or acceptance of the claim by the defendant and the decree granted after adjudication of the disputed facts. In the former case there is no adjudication on the disputed issues. Even in such cases where several defendants enter the issues, there can be conflicting decrees against the different defendants inasmuch as the Court may decree the claim against some of the defendants, and dismiss the suit against others. Such conflicting decrees neither offend against the administration of justice, nor any rule of logic or fundamental legal principles. It may further be observed that postponing the decree against other defendants except defendants Nos.3 and 4 would amount to depriving the plaintiff of his entitlement to the decree. The omission of the word "immediately" is of no consequence and the use of following words in the last sentence "the plaintiff shall be entitled to decree" are mandatory in nature, The suit is, therefore, decreed against defendants Nos.1 and 2 and 5 to 8 as prayed. AA./E‑58/K Suit decreed.