DR. AZIZUR REHMAN CHOWDHURY vs Chowdhary MUHAMMAD DIN
This civil appeal by special leave arose from a Letters Patent Appeal before the High Court of West Pakistan, which had dismissed the appellant's appeal against a summary decree passed under Order XXXVII of the Code of Civil Procedure 1908. The respondent had sued the appellant for recovery of dues based on a promissory note. The appellant's application for leave to defend was rejected by the trial court as it failed to disclose facts making it incumbent on the holder to prove consideration. Subsequently, during the Letters Patent Appeal, the appellant filed a belated affidavit raising entirely new pleas, including that the loan was secured by a mortgage and that the promissory note was merely collateral without consideration. The Supreme Court of Pakistan held that new, inconsistent, and belated pleas not raised before the trial court cannot be entertained on appeal. It reaffirmed that leave to defend under Order XXXVII Rule 3(1) of the Code of Civil Procedure 1908 can only be granted where there is a bona fide, non-illusory triable issue, which the appellant failed to demonstrate.
- Can a defendant raise entirely new and inconsistent factual pleas for the first time in a Letters Patent Appeal that were never raised before the trial court in an application for leave to defend?
- What is the standard for granting leave to defend under Order XXXVII Rule 3(1) of the Code of Civil Procedure 1908?
- Whether a belated affidavit raising illusory and unproven allegations of a lack of consideration is sufficient to establish a bona fide triable issue in a summary suit?
- Order XXXVII, Code of Civil Procedure 1908
- Order XXXVII Rule 3(1), Code of Civil Procedure 1908
1. SALAHUDDIN AHMED, J.-This appeal by special leave is from an order of a Division Bench of the erstwhile High Court of West Pakistan at Karachi, passed in a Letters Patent Appeal.
2. Respondent Chowdhry Muhammad Din had filed a suit in the Original Side of the said High Court against appellant Dr. Azizur Rehman under Order XXXVII of the Code of Civil Procedure for recovery of Rs. 40,218-12-0 due on a promissory note dated the 5th October 1959. The defendant's (appellant's) applica--petition for leave to defend the suit was dismissed and the suit was decreed by a learned Single Judge of the, High Court. The appellant's Letters Patent Appeal against the said judgment and decree was also dismissed.
3. The appellant appears to have raised different pleas at R different times. Before the trial Court the appellant, while asking v, for leave to defend the suit, contended, firstly, that the suit was h not maintainable under Order XXXVII of the Code of Civil -Procedure because the right to sue thereunder had ceased to exist before his institution; and secondly, that the promise to pay is conditional and not on demand because the demand could be made in terms of the pronote after the given date. Both these contentions were negatived and the application for leave to defend was refused and the suit was decreed.
4. Rule 3(1) of Order XXXVII of the Code of Civil Procedure prescribes as follows :- "3. (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."
5. Nothing was disclosed by the appellant before the trial Court to enable the Court to hold that it was incumbent upon the respon--dent to prove consideration etc. On the contrary, as stated already, the pronote along with the said receipt prima facie showed that there was consideration for the pronote.
6. Long after the filing of the Letters Patent Appeal and its admission for regular hearing the appellant filed another affidavit in which he for the first time sought to raise the plea that the loan in question was in fact secured by mortgage of his two houses ; that the plaintiff'-respondent had already recovered the said loan by securing three bungalows in Karachi against the claim com--pensation of the appellant in respect of which he had executed a general power of attorney in favour of the respondent empower--ing him to sell or mortgage the said bungalows ; and that he had executed the promissory note in question by way of additional security of the said loan, and in fact no consideration had passed upon the promissory note.
7. These belated pleas were never taken up before the trial Court and consequently, it was not open to the appellant to raise them before the Division Bench hearing the Letters Patent Appeal. The alleged loan agreement itself upon which the said pleas were raised was never produced before the Division Bench. Further more, the agreement had provided for the execution of a mortgage by the appellant, but no mortgage deed was ever executed.
8. Nevertheless the Bench considered these pleas and observed that the stand taken by the appellant upon this subsequent affidavit was totally different from his case as put forth before the trial Court, and also from the contents of the promissory note in question.
9. Having regard to the fact that the appellant changed his defence or added to it from time to time as has been found in the Letters Patent Appeal, and his belated pleas based on the Loan Agreement that was never produced before the Letters Patent Bench, it can hardly be skid that there was a bona fide allegation of a triable issue, which was not illusory. Even the affidavit that purported to verify them suffered from inordinate delay. This view is consistent with the principle laid down in the case of Kodak v. Alpha Film Corporation ((1930) K B 340) which has been followed by this Court in the case of Fine Textile Mills Ltd., Karachi v. Haji Umar (PLD 1963 SC 163). It is, therefore, too late in the day to contend that the loan was advanced upon the mortgage and that the promissory note in question was merely a collateral document against which no consideration had passed.