2016 PLP 1 (YLRN)

ARSHAD MAHMOOD TABASSUM, J.

The respondent instituted a suit for recovery of rupees eighteen lacs against the petitioner on the basis of cheque, under Order XXXVII, Rule 1 and 2, C.P.C. The petitioner being defendant in the suit submitted application for leave to appear and defend the suit. However, the same was dismissed by the learned trial Court vide order dated 26.11.2014. The petitioner being aggrieved of the said order has preferred the instant petition under Section 115, C.P.C.

2. It appears that the application for leave to appear and defend the suit was not in the proper form instead it was captioned as nder:-- REPLY OF THE SUIT FOR LEAVE TO APPEAR AND DEFEND THE SUIT U/O XXXVII RULE 3, C.P.C. AND READ WITH RULE 7, ORDER XI, C.P.C." Subsequently, it appears that respondent plaintiff submitted an application for appropriate orders maintaining therein that petitioner-defendant was required to file an application for leave to appear and defend the suit within ten days from personal service of summonses, but instead of filing such application, he had filed written reply to the suit directly and since he had failed to file application for leave to appear and defend the suit within requisite time, therefore, his defence should be struck off The said application was contested by the present petitioner-defendant. However, ultimately the learned trial court vide order dated 10-12-2014 (impugned herein) held that the reply to the suit could not be treated as an application for leave to appear and defend the suit nor was there any prayer for grant of leave to contest, hence, the same could not be considered as an application for leave to appear and defend the suit. Accordingly, the reply submitted by the petitioner was held to be invalid and was dismissed. The suit was therefore, fixed for ex parte evidence of the plaintiff.

3. Being dissatisfied with the impugned order, the petitioner has preferred the instant petition under Section 115, C.P.C..

4. Learned counsel for the petitioner has argued that although the petitioner had submitted reply to the suit, but it was mentioned therein that it was for leave to appear and defend the suit and that the same could be treated as an application for leave to appear and defend the suit and since it had disclosed triable issues leave was liable to be granted.

5. Conversely, learned counsel for the respondent fully contested this petition.

6. Heard. Record perused.

7. There is no cavil to the proposition that even a written statement can be considered to be an application for leave to appear and defend the suit, provided it fulfils the pre-requisites of an application for leave to appear and defend the suit. However, in the instant case, the reply to the suit filed by the petitioner was neither verified on oath nor any affidavit was sworn in by the petitioner in support of the contents of the said application or reply. It appears from the impugned order that this was the sole reason which prevailed with the learned trial court to dismiss the said reply. Learned counsel for the petitioner has placed reliance upon the case titled "Muhammad Siddique v. Zafar Abbas" (2004 YLR 1047) to argue that the Court had power to treat an application as a written statement and a written statement as an application. Similarly, he has placed reliance on the case titled "Zohair Akhtar v. Jawad Adil" (2006 YLR 1510) to argue that mere non-filing of an affidavit was not sufficient to hold that the application was incompetent nor it could be dismissed on this score. Having considered this argument of the learned counsel for the petitioner, it is observed that in the case of Muhammad Siddique (supra) undoubtedly, this Court has observed that the Court has power to treat an application as a written statement and a written statement as an application and that mere wrong drafting by the party or its counsel would not debar Court from taking into consideration gist of assertions made therein, however, at the same time, it is a hard fact that the law (Order XXXVII, Rule 3, C.P.C.) makes it incumbent upon an applicant/defendant to support his application for leave to appear and defend the suit with affidavit(s) which disclose 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. The relevant provision of law is reproduced below for the sake . of convenience:-- "

3. 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 disclose 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. (2) .. (3) ..

8. Undeniably, in the case in hand, the reply to the suit for leave to appear and defend the suit, as it was termed by the petitioner-defendant himself was not accompanied by an affidavit nor its contents were verified on oath, therefore, it could not be treated either as a written statement or an application for leave to appear and defend the suit. In the case of "Zohair Akhtar" (supra) it was held by this Court that an affidavit sworn in support of the facts narrated in an application for leave to appear and defend the suit should be a detailed affidavit. However, even a brief affidavit was held sufficient to serve the purpose by observing as under:-- "As regards the affidavit, it has been filed in support of the application which is the requirement of the law, may be shorter in form. But it embodies the requisites of an affidavit which has been duly attested by an Oath Commissioner. The only deficiency that it is not in an elaborate form, does not render the same ineffective. Resultantly, the objection is also repelled." However, in the case in hand, neither short nor detailed affidavit was annexed with the reply to suit, therefore, the said reply could not be treated either as a written statement or an application to defend the suit.

9. In another case titled "Abdul Rehman v. Talib Hussain" (1989 CLC 1689), this Court has observed that application for leave to appear and defend the suit which was not supported by an affidavit was incompetent. The relevant portion of the said judgment reads as under:- "In the present case, as already stated, the application submitted by the appellant seeking leave to defend the suit was not supported by an affidavit. It was, therefore, not in accordance with the mandatory provisions of rule 3 of Order XXXVII, C.P.C. The learned District Judge in the circumstances was justified to decline leave to defend the suit. Needless to add that independent civil suit filed by the appellant seeking cancellation of the promissory note which forms the basis of the suit giving rise to the impugned decree has since been dismissed by the learned trial Court." Yet in another case titled "Waqas Traders through Sole Proprietor v. M. Nawaz (2003 CLD 84), a learned Division Bench of this Court ruled as under:-- "Admittedly, the suit filed by the respondent was under 'the provisions of Order XXXVII, Civil Procedure Code and the appellant failed to file any such affidavit and/or application within a period of ten days, as provided under Order XXXVII, rule 3, Civil Procedure Code. Although the written statement was filed, yet that does not conform with the requirements of provisions of Order XXXVII, rule 2(2) and Order XXXVII, rule 3, Civil Procedure Code. In view of the aforenoted mandatory provisions of law, we are of the view that as the written statement was not in consonance with the said provisions of law, thus, the same could not be treated as an application for leave to appear and defend the suit."

10. The upshot of the above discussion is that the learned trial Court was well within its right to hold that no application for leave to appear and defend the suit was competently instituted within the time prescribed, hence leave to appear and defend the suit was rightly refused, to which, no exception can be taken by this court in its revisional jurisdiction.

11. In the light of the above discussion, this petition has no merit, which fails and the same is hereby dismissed. ZC/R-2/L Revision dismissed.