2023 PLP 1341 (YLR)

MUZAMIL AKHTAR SHABIR, J.

Through this civil revision, petitioner has called in question order dated 09.01.2020 passed by learned Addl. District Judge, Gujranwala whereby in suit for recovery of Rs.15,50,000/- filed by respondent under Order XXXVII of C.P.C. against the petitioner, his application for leave to defend has been dismissed.

2. Learned counsel for the petitioner states that impugned order is not sustainable as the learned Court below has not properly appreciated the law on the subject and filing of affidavit along with application for leave to defend was not a mandatory requirement, therefore, his application for leave to defend cannot be dismissed.

3. On the other hand, learned counsel for the respondent has defended the impugned order by stating that non-filing of affidavit with application for leave to defend is fatal to the case of the petitioner.

4. Respondent filed a suit for recovery of Rs.15,50,000/- under Order XXXVII of C.P.C. against petitioner in which application for leave to defend was filed by the petitioner on the ground that suit was barred by time and cheques given as guarantee had been misused but the said application was not accompanied by an affidavit. Learned Addl. District Judge dismissed the said application by observing as under: "

4. It is the case of plaintiff that he gave disputed amount valuing Rs.15,50,000/- to the defendant as a loan in October 2017 subject to the condition that he would return the same in February 2018. The defendant issued disputed cheque No.00000013 dated 05.03.2018 valuing Rs.10,00,000/- and cheque No.00000014 dated 05.03.2018 valuing Rs.5,50,000/- of HBL Mandiala Tega Kamoki Branch Tehsil Kamoki District Gujranwala in lieu of that amount which got dishonored on presentation to the concerned bank. The defendant has averred that the cheques in question were issued to the plaintiff as a guarantee and as such the plaintiff has misused these cheques after in league with Fiaz ul Haq son of Ihsan ul Haq who was discharging his duty as his peon. Under Order XXXVII, Rule III(1) which reads as under: "Defendant showing defence on merits to have leave to appear. (1) the court shall, upon application by the defendant give leave to appear and to defend the suit; upon affidavits which discloses such facts as would make it incumbent on the holder to prove consideration, or such other facts as the court may deem sufficient to support the application."

5. The relevant provision of law quoted above has crystal clear defines the one of pre-requisite for granting leave to defend the suit to defendant for making such application, if it is supported by an affidavit in such suit. The application for leave to defend the suit filed by the defendant is only competent if it accompanied with an affidavit. As such affidavit is a basic document under Order XXXVII, Rule III, C.P.C. which would reflect such facts, as would made it incumbent upon plaintiff to prove the consideration. Reliance is placed on reported case law titled as "Mirza Irfan v. Muhammad Yaqoob" 2011 MLD 1024 LHR."

5. The petitioner has taken the plea that non-filing of affidavit is not fatal and has relied upon judgments reported as "Khurshid Alam and another v. Al-Khair Gadoon Limited" (2004 CLC 1266) (Lahore), "Sardar Abdur Rehman v. Fida Hussain" (1996 CLC 1571) (Pesh) and "Emirates Bank International v. United Exports Limited and 8 others" (PLD 1993 Kar. 661) in support of his claim. The afore-referred plea has been considered in view of the judgments relied upon by the petitioner. In case reported as "Khurshid Alam's case (Supra) the application for leave to defend itself was verified on oath yet was not supported by an affidavit. In the said circumstances on the ground of the application itself having been verified on oath, this Court treated the same as sufficient compliance of provision of Order XXXVII, Rule 3, C.P.C. and while setting aside the order for dismissal of application for leave to defend remanded the case for decision afresh. In case reported as "Sardar Abdur Rehman's case (Supra) the application for leave to defend was accompanied by an affidavit yet the said affidavit had not been attested by the Oath Commissioner, the High Court observed that application for leave to defend cannot be rejected solely for the reason that accompanying affidavit was not attested. In case reported as Emirates Bank International's case (Supra) where the application for leave to defend was not accompanied by an affidavit the Court observed that Court has discretion under Section 148, C.P.C. to accept a belatedly filed affidavit.

6. In the present case, the application for leave to defend filed by the petitioner was neither itself verified nor was accompanied by an affidavit and permission had not been sought from the Trial Court to subsequently file and affidavit, hence, the afore-referred judgments referred to by the learned counsel for the petitioner are distinguishable on facts and of no benefit to him.

7. Perusal of the Rule III(1) of Order XXXVII, C.P.C. shows that Court has to consider the application for leave to defend on the basis of affidavit relating to facts submitted by the applicant and not otherwise. An exception to said legal position would be that the claim of the applicant to obtain leave to defend is based on question of law only and not on the basis of any disputed fact, then affidavit may not be required to be filed as the Court is always competent to decide the questions of law as same only require interpretation of law. But in the present case, petitioner disputes claim on factual ground that cheques were issued as guarantee and had been misused which plea was required to be supported by an affidavit attached with the application for leave to defend but the same has not been filed, therefore, learned Addl. District Judge was justified to dismiss the application for leave to defend. Reliance in this regard may be placed on judgments reported as "Muhammad Imran Hafeez v.. Naveed Ali" (2015 CLC 1747), "Raja Zahid Hussain v. Director-General National Housing Authority, Islamabad and 2 others" (2005 YLR 1521) and "Messrs Bilour Match Industries v. Messrs Paper World (Pvt.) Ltd." (2012 YLR 2277), which make filing of an affidavit in support of facts a mandatory requirement.

8. As regards the plea raised by the petitioner that suit was barred by Limitation, it is pertinent to mention here that the Court in terms of Section 3 of the Limitation Act, 1908 is bound to determine the same even if not raised as a defence, which Section is reproduced below: "

3. Dismissal of suit, etc. instituted, etc. after period of limitation.

Subject to the provisions contained in sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made after the period of limitation prescribed therefor by the First Schedule shall be dismissed although limitation has not been set up as a defence."

9. The Court while determine the said question of limitation, which is a mixed question of law and facts may require affidavit to be attached with the application for leave to defend, if the said question is to be determined by the resolution of some disputed facts. However, if for resolution of said question of limitation, decision has to be made on admitted facts or facts which are not disputed then the Court on its own can determine the said question of limitation even if not raised by any party whether leave to defend has been granted or not.

10. In view of what has been discussed above, this civil revision fails to show any illegality, jurisdictional defect, mis-reading and non-reading of record by the Trial Court in passing the well-reasoned impugned order which does not warrant any interference by this Court. With this observation, this civil revision being devoid of merits is dismissed. IH/M-24/L Revision Petition dismissed.