P L D 1982 Karachi 745 (PLP)

This is a suit filed under Order XXXVII for recovery of Rs. 3 lacs the allegation that the defendant had taken a loan from the plaintiff and repaid it through a cheque dated 30th April, 1980, which was dishonoured. The defendant filed an application under Order XXXVII, rule 3 for leave to appear and defend the suit. He simultaneously filed an application under section 10, C. P. C. for stay of the suit on the allegation that on 29‑4‑1980 the defendant has filed against the plaintiff a suit in this Court bearing No. 605/80 for declaration that the plaintiff has no right, title or interest in the cheque which is without consideration. The defendant's suit is in respect of 9 cheques for a total sum of Rs. 5 lacs which the defendant alleges that he had advanced to the plaintiff for investment and the first cheque was encashed but as no profits were paid to him he stopped the payment of all other cheques. The defendant filed suit on 29th April 1980, whereas the suit by the plaintiff was filed on 22‑5‑1980. On this basis the defendant has prayed that as his suit No. 605%80 is a previously instituted suit between the same parties in respect of the same subject‑matter, the present suit should be stayed. The defendant has further contended that even before the hearing of applica tion under Order XXXVII, rule 3, C. P. C. for permission to appear and defend the suit the proceedings of the present suit should be stayed. The question, which falls for consideration is whether in a suit filed under Order XXXVII, C. P. C. an application under section 10, C, P. C. can be heard and decided before leave is granted to the defendant to appear and defend the suit. As the question involved is of great importance Mr. Fazeel, Mr. J. H. Rahmatoollah Mr. Iqbal Kazi and Mr. Mansoo:‑l Arfin, Advocates have appeared as amicus curiae.

2. Mr. Syed Wazir Hyder the learned counsel for the defendant has contended that as section 10, C. P. C. is mandatory and affects the jurisdiction of the Court no proceedings can be taken in a suit which is hit by section 10, C. P. C. on the other hand Mr. Fasihuddin the learned counsel for the plaintiff has contended that as the proceeding under section 10 is a step to defend the suit the defendant cannot be permitted to raise this plea unless an application under Order XXXVII, rule 3, C. P. C. has been granted.

3. Mr. J. H. Rahmatullah the learned counsel while explaining the object of section 10, C. P. C. and relying on P L D 1972 S C 34, P L D 1954 Lah. 802 and A I R 1962 S C 527 contended that the provisions of section 10, C. P. C. are mandatory. He further contended that as proceedings under Order XXXVII, rule 3, C. P. C. should be deemed to be a trial, if the case is covered by section 10, C. P. C. the hearing of application under Order XXXVII, rule 3, C. P. C. should be stayed. He, however, relying on P L D 1969 Kar. 193 suggested that the best course will be to consolidate both the suits but if on the facts and circumstances of the case it is not possible then the application under Order XXXVII, rule 3, C. P. C. should be stayed.

4. Mr. A. A. Fazeel the learned counsel has a completely different view. While dialating upon the object of the provisions of section 10, C. P. C. and Order XXXVII, C. P. C. the learned counsel contended that under section 10, C. P. C. only trial is barred whereas if a suit is filed under Order XXXVII, C. P. C. the defendant is not entitled to appear and defend the suit without the leave of the Court. He further contended that unless this bar is removed the question of trial does not arise and therefore, in his view the proceed ings under Order XXXVII, rule 3, C. P. C. cannot be stayed under section 10, C. P. C.

5. Before considering various authorities cited by the learned counsel it would be appropriate first to determine the object and nature of section 10, C. P. C. and Order XXXVII, C. P. C. Section 10 is mandatory and has been couched in a Prohibitory language. The object of section 10 is to prevent Courts of concurrent jurisdiction from simultaneously adjudicating and pro ceeding with trial of two suits in which the matter in issue is directly and substantially the same between the same parties. This section prohibits trial of two parallel litigations in respect of the same cause of action, the same subjectmatter the same relief between the same parties. It has always been the policy of law that multiplicity of suits should be avoided and possibility of conflict of decision between two or more Courts in respect of the same subject‑matter and controversy should be discouraged. Where the conditions laid down by section 10 are satisfied the Court had no discretion in the appli cation of this section as the provisions of this section are mandatory and the previously instituted suit alone should be proceeded with and the subsequent suit must be stayed.

6. Order XXXVII, C. P. C. is procedural in nature and provides for a speedy, efficatious and summary remedy for recovery of money m respect of suits filed on the basis of bill of exchange, cheques, hundis and promissory notes. This provision is a departure from the procedure provided for ordinary suits. Order XXXVII is however, only an enabling provision and a plaintiff wishing to enforce a bill of exchange, hundi or a promissory note may at hi option bring a summary suit under this order or may institute a suit undo the ordinary procedure. The advantage to the plaintiff for adopting such a procedure is provided under Order XXXVII, rule 2, C. P. C. which provides that without leave of the Court a defendant can not appear and defend the suit, as a matter of‑right. He has to apply for leave to appear and defend the suit. Without obtaining leave to appear and defend, a defendant will not be heard. by the Court in defence of the action. A defendant may apply for. leave within 10 days of the service of summons upon him. If be does no apply for such a leave or if the leave is refused the plaintiff will be entitled to a decree and all the allegations made in the plaint are deemed to be admitted. Now by virtue of Ordinance X of 1980, sub‑rule (3) has been added to .Order XXXVII, rule 3, C. P. C. whereby the provision of section 5 of the Limitation Act has been made application under Order XXXVII, rule 3, sub‑rule (1), C. P. C. The bars imposed upon a defendant in terms of Order XXXVII, rule 8sub‑clause (2) is in mandatory terms imposing a con ditional bar on the defendant from appearing and defending the suit. The effect of such a bar is that the defendant cannot, appear at any stage of the suit either before or after service of the summons without obtaining leave, of the Court to appear. Reference can be made to A I R 1924 Mad. 46. h effect of this provision is that where leave is not applied for or is applied for and is refused the plaintiff takes a decree without adducing any evidence provided service of summons on the defendant is proved.

7. Mr. A. A. Fazeel, the learned counsel relying on the cases of J. Echoiz, German Merchant v. Messrs Amarnath Srinath (A I R 1935 Lah‑.76), and Jaipal Ahlr v. Badrl Parshad (A I R 1936 All. 485) contended that section 10, C. P. C. bars the trial of the suit and the Court continues to exercise jurisdiction. It is well settled that section 10, C. P. C. does not oust the jurisdiction of the Court to entertain any suit. It only bars the trial of the subsequently instituted suit. This is clearly borne out by the language of section 10, C. P. C. which presupposes the institution and entertainment of a second suit.

8. Mr. Fazeel further contended that although application under section

10. C. P. C. does not constitute a defence it cannot be heard without the leave of the Court. Reference has been made to Ramrich Pal v. Dayan and Swarup (A I R 1955 Al1.‑307) in which following observation was made :‑ "To my mind a plea under section 10, C. P. C. does not constitute a defences to the suit and it should not therefore be a matter in issue between the parties and the mere fact that the Court has wrongly framed an issue should make no difference. On that point I agree with the observation of Mukarje, J. in Balakrishana's case A I R 1917 P C 71."

9. From a perusal of the case cited above it seems that clear that pro ceeding under section 10 does not relate to the matter in controversy in suit or the merits of the case and it does not constitute a defence. It has been contended that as section 10 bars the trial and does not form a defence, the defendant can press his application under section 10, C. P. C. This objection overlooks the mandatory provision of Order XXXVII, rule 2, sub‑clause (2) C. P. C. under which a defendant can not appear and defend the suit without the leave of the Court. Mr. Fazeel is justified in contending that unless the bar imposed by Order XXXVII, rule 2, is removed the suit will not be rip for trial and the question of stay will not arise at all. It is correct that section 10, C. P. C. does not bar decision on interlocutary application. Refer to A I R 1922 Bom.

276. In cases where trial has been stayed the Court will be competent to entertain and adjudicate interlocutary application such as injunction applications, application for attachment before judgment and appointment of receiver. However in a suit filed under Order XXXVJI, unless the defendant obtains leave to appear he cannot file even such inter locutary applications. Mr. Mansoorul Arfin, relying on Indian Express v. Basumati Pvt. Ltd. (A I R 1969 Bom. 40) contended that on an application filed under section 10, C. P. C. the Court is empowered to stay the proceeding of a suit filed under Order XXXVII, C. P. C. However Mr. Iqbal Kazi who has supported the arguments of Mr. A. A. Fazeel, has pointed out that A I R 1969 Born. 40 is not relevant to the present controversy and is distinguishable as in Bombay the provision of Order XXXVII, rule 2, sub‑rule (2), C. P. C. has substantiaily been changed. There the bar is only on defending the suit and not on appearance and there fore a defendant can appear but he cannot defend the suit without obtaining leave to defend it. In the present case, according to law, as it stands in Pakistan, in a suit under Order XXXVII, C. P. C. a defendant cannot appear without leave of the Court and therefore the question of filing an application under section 10, C. P. C. does not arise before leave to appear and defend has been granted. In my opinion the decision reported in A I R 1969 Bom. 40 is completely distinguishable and is not applicable to the present case. I view of the above discussion, I‑ am of the opinion that unless a defendant , obtains leave from the Court to appear and defend the suit he is not entitled to mare interlocutary application including an application under section 10, C. P. C. The consideration of application under section 10, C. P. C. deferred till the defendants application under Order XXXVII, rule 2 decided. Appeal dismissed.