Leave to appear and defend

2023 CLC 1131 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Art.159Civil Procedure Code (V of 1908), O.XXXVII, Rr.1&2Suit for recovery of amount on basis of chequeLeave to appear and defendLimitation

Limitation for filing application for leave to appear and defend, suit under O.XXXVII of C.P.C was ten days which started from the date of service

Defendant/appellant appeared before the Court through counsel and requested time to file leave to defend

On the next hearing another request for adjournment for the said purpose was made and the Court adjourned the case for filing the application for leave to defend

Record did not show that even till that time defendant was provided copy of the plaint

In case it is considered that limitation was to run from the date of appearance of the appellant before the Court on 25.09.2020, even then it had to be noted that Court itself allowed appellant to file the application for leave to defend on 07.10.2020 and appellant filed the same on that very day

Since the application for leave to defend was filed within the time granted by the Court, the observation made by Trial Court regarding non-filing of application for condonation of delay was misconceived

When a request for adjournment is made, the Court should keep in mind the period of limitation while granting time for filing the leave to defend

Since the Court itself granted time till 07.10.2020, the said delay and default was not attributable to the appellant.

2023 CLC 1131 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

O.XXXVII Rr.1,2 & Form IV of Appendix BLeave to appear and defendDuty of CourtDifference between suit under O.XXXVII and ordinary suit

Duty of the Court is not only to issue summons but the Court is also obliged to issue summons according to the Form IV, so that the defendant should attend the Court proceedings with a prepared mind, as intended by the summary trial under O. XXXVII of the C.P.C

Unless the defendant was informed regarding the pendency of the case in the required mode and manner, no delay or default could have been attributed to him regarding filing of the application for leave to defend within the limitation provided by the law

Special intention behind it is that suit under O.XXXVII of the C.P.C is differentiated from the ordinary suit and summary procedure has been specially formulated, wherein not only a plaint must have been attached in order to notify the defendant about pendency of the case but also inform him through Form IV that he has only limited period to approach the Court and get permission to appear and defend the suit, otherwise his right will be struck down due to penal clause attached thereto

Unless, the defendant was handed over copy of plaint for filing of leave to defend as required by law, no delay or default could be attributed to him.

2014 CLD 63 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 118Civil Procedure Code (V of 1908), O. XXXVII, Rr.2 & 3Qanun-e-Shahadat (10 of 1984), Arts.78, 79 & 84Suit for recovery of money on the basis of promissory noteLeave to appear and defendComparison of signatures and thumb impressions, powers of courtPresumptions as to negotiable instrumentsNew plea in appealExecution of promissory note and its Receipt, proof of

Trial Court allowed the application of the appellant to appear and defend however, decreed the suit of the respondent after framing of issues and recording of evidence

Appellant assailed the judgment and decree of the Trial Court in appeal

Contentions of the appellant that the entire case hinged upon the Promissory Note and the Receipt that were produced by the respondent in evidence

Appellant contended that he had denied his signatures on the Promissory Note and its Receipt, therefore, these documents, could not be treated as negotiable instruments, that the stamps on Promissory Note were not cancelled, and the thumb impressions were on the Receipt and not the Promissory Note, therefore, it could not be tendered in evidence; that once the signatures and thumb-impressions on documents were denied, the Trial Court was bound to refer the matter to the Handwriting Expert under Art.78 of the Qanun-e-Shahadat, 1984 and could not have compared the signatures and thumb-impressions by itself and that once signatures of execution of the said documents were denied, no presumption was available to these documents under S.118 of the Negotiable Instruments Act, 1881 and the respondent was bound to prove the execution

Respondent on the other hand submitted that the Promissory Note and the Receipt were duly proved through oral as well as documentary evidence produced before the Trial Court; that the appellant had not raised any objection before the Trial Court regarding the non-cancellation of stamps, as well as the thumb impressions being not on the Promissory Note, therefore, new pleas could not be raised in appeal, which was not raised before the Trial Court and that under Art.84 of the Qanun-e-Shahadat, 1984 the Trial Court had ample power to compare the thumb-impressions and signatures of the appellant with the signatures and thumb-impressions on the admitted documents, which exercise was lawfully done by the Trial Court

Validity

Perusal of the oral and documentary evidence showed that the respondent while appearing as witness reiterated his stance raised in the plaint and also produced original Promissory Note and Receipt as exhibits in evidence

Marginal witnesses of these exhibits also appeared as witnesses and supported the stance of the respondent to the effect that the appellant in their presence had borrowed a sum of money from the respondent and had executed the Promissory Note and the Receipt and also had put his thumb impressions along with signatures on the said documents

Appellant though had denied the signatures on these documents but surprisingly no application was moved by the appellant before the Trial Court for referring the matter to the Handwriting Expert

Trial Court while exercising powers under Art.84 of the Qanun-e-Shahadat, 1984 itself compared the thumb-impressions of the appellant with the thumb-impressions on admitted documents in the shapes of grooves and arches, which were very much the same as on the admitted documents

Signatures of the appellant were also compared with the signatures on the admitted documents by the Trial Court and found to be the same that of the appellant

Under the provisions of Art.84 of the Qanun-e-Shahadat, 1984 in certain eventualities, the court enjoyed preliminary powers to compare the signatures itself along with the other relevant material to resolve the controversy

High Court noted that the Trial Court had carefully gone through the process and compared the exhibited documents to the documents admittedly executed by the appellant and found them to be in complete similarity and tallied with each other

Fact that the matter was not referred to the Handwriting Expert did not render the impugned judgment legally infirm as to warrant interference by the High Court, especially where the appellant had not moved any application for referring the matter to the Handwriting Expert

No objection was taken by the appellant at the time when the Promissory Note was being tendered in evidence before the Trial Court on the ground that the stamps on the Promissory note were not duly cancelled and it was not admissible in evidence, therefore, this plea could not be raised in appeal

Objection of the appellant that thumb-impressions and signatures were on the Receipt and not on the Promissory Note was contrary to the record, as there were two signatures and two thumb-impressions, available on the document and the perusal of it showed that one was regarding the Promissory Note and the other was on the Receipt, moreover, even the said objection was not raised in the Trial Court

If a plea was not raised at the trial stage, same could not be raised for the first time in appeal

Findings of the Trial Court were based on correct appreciation of evidence on record, therefore, the same did not call for any interference

Impugned judgment and decree of the Trial Court were upheld and the appeal was dismissed by the High Court, in the circumstances.

2014 PLD 1 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

0. XXXVII, Rr. 2 & 3Qanun-e-Shahadat (10 of 1984), Arts.78, 79 & 84Negotiable Instruments Act (XXVI of 1881), 5.118Suit for recovery of money on the basis of promissory noteLeave to appear and defendComparison of signatures and thumb impressions, powers of courtPresumptions as to negotiable instrumentsNew plea in appealExecution of promissory note and its Receipt, proof of

Trial Court allowed the application of the appellant to appear and defend however, decreed the suit of the respondent after framing of issues and recording of evidence

Appellant assailed the judgment and decree of the Trial Court in appeal

Contentions of the appellant that the entire case hinged upon the Promissory Note and the Receipt that were produced by the respondent in evidence

Appellant contended that he had denied his signatures on the Promissory Note and its Receipt, therefore, these documents, could not be treated as negotiable instruments, that the stamps on Promissory Note were not cancelled, and the thumb impressions were on the Receipt and not the Promissory Note, therefore, it could not be tendered in evidence; that once the signatures and thumb-impressions on documents were denied, lie Trial Court was bound to refer the matter to the Handwriting Expert under Art.78 of the Qanun-e-Shahadat, 1984 and could nnt have compared the signatures and thumb-impressions by itself and that once signatures of execution of the said documents were denied, no presumption was available to these documents under S.118 of the Negotiable Instruments Act, 1881 and the respondent was bound to prove the execution

Respondent on the other hand submitted that the Promissory Note and the Receipt were duly proved through oral as well as documentary evidence produced before the Trial Court; that the appellant had not raised any objection before the Trial Court regarding the non-cancellation of stamps, as well as the thumb impressions being not on the Promissory Note, therefore, new pleas could not be raised in appeal, which was not raised before the Trial Court and that under Art.84 of the Qanun-e-Shahadat, 1984 the Trial Court had ample power to compare the thumb-impressions and signatures of the appellant with the signatures and thumb-impressions on the admitted documents, which exercise was lawfully done by the Trial Court

Validity

Perusal of the oral and documentary evidence showed that the respondent while appearing as witness reiterated his stance raised to the plaint and also produced original Promissory Note and Receipt as exhibits in evidence

Marginal witnesses of these exhibits also appeared as witnesses and supported the stance of the respondent to the effect that the appellant in their presence had borrowed a sum of money from the respondent and had executed the Promissory Note and the Receipt and also had put his thumb impressions along with signatures on the said documents

Appellant though had denied the signatures on these documents but surprisingly no application was moved by the appellant before the Trial Court for referring the matter to the Handwriting Expert

Trial Court while exercising powers under Art.84 of the Qanun-e-Shahadat, 1984 itself compared the thumb-impressions of the appellant with the thumb-impressions on admitted documents in the shapes of grooves and arches, which were very much the same as on the admitted documents

Signatures of the appellant were also compared with the signatures on the admitted documents by the Trial Court and found to be the same that of the appellant

Under the provisions of Art.84 of the Qanun-e-Shahadat, 1984 in certain eventualities, the court enjoyed preliminary powers to compare the signatures itself along with the other relevant material to resolve the controversy

High Court noted that the Trial Court had carefully gone through the process and compared the exhibited documents to the documents admittedly executed by the appellant and found them to be in complete similarity and tallied with each other

Fact that the matter was not referred to the Handwriting Expert did not render the impugned judgment legally infirm= as to warrant interference by the High Court, especially where the appellant had not moved any application for referring the matter to the handwriting Expert

No objection was taken by the appellant at the time when the Promissory Note was being tendered in evidence before the Trial Court on the ground that the stamps on the Promissory note were not duly cancelled and it was not admissible in evidence, therefore, this plea could not be raised in appeal

Objection of the appellant that thumb-impressions and signatures were on the Receipt and not on the Promissory Note was contrary to the record, as there were two signatures and two thumb-impressions, available on the document and the perusal of it showed that one was regarding the Promissory Note and the other was on the Receipt, moreover, even the said objection was not raised in the trial Court

If a plea was not raised at the trial stage, same could not be raised for the first time in appeal

Findings of the Trial Court were based on correct appreciation of evidence on record, therefore, the same did not call for any interference

Impugned judgment and decree of the Trial Court were upheld and the appeal was dismissed by the High Court, in the circumstances.