ABDUL REHMAN vs TALIB HUSSAIN Respondent

A suit for recovery of Rs.1,50,000 on the basis of a promissory note dated 23-9-1986 was filed by Talib Hussain respondent herein against Abdul Rehman appellant, in the Court of the learned District Judge, Sahiwal, under Order XXXVII of the Code of Civil Procedure. The learned District Judge issued the special process whereafter the appellant submitted an application dated 8-12--1986, seeking permission to defend the suit. It was maintained in the said application that the promissory note was based on fraud and coercion and that, in fact, he did not owe any amount to the respondent. It, however, transpired that the application seeking permission to defend the suit was not supported by an affidavit. As a matter of fact, an objection in writing was raised suit was received by transfer in the Court of a learned Additional District Judge, Sahiwal, who fixed the case for arguments for the disposal of the application seeking permission to defend the suit for 21-2- 1987. On the latter date, however, the Court did not function as the presiding officer was on leave and the matter was adjourned to 2--3-1987, under the signatures of another Additional District Judge. On 2-3-1987, after hearing the parties the learned Additional District Judge refused the permission to defend the suit and consequently he decreed the suit with costs. Hence this appeal.

2. It has been contended on behalf of the appellant that the appellant six days after the execution of the promissory note dated 23-9-1986, filed an independent suit seeking cancellation of the promote. It has further been urged that on account of some misunderstanding the affidavit could not be filed supporting the application seeking permission to defend the suit, but this omission was not fatal and he should have been afforded an opportunity to file the same.

3. The learned counsel for the respondent, however, maintained that legally it was obligatory to file affidavit while seeking permission to defend the suit and that omission to do so was fatal. It has also been canvassed that objection in writing was made questioning the competency of the application seeking permission. To defend the suit on the ground that it was not supported by an affidavit but for a pretty long time till the passing of the impugned judgment and decree the appellant neglected to seek permission to file any affidavit.

Reliance on behalf of the appellant has been placed on Messrs United Bank Limited v. Yousuf Haji Noor Muhammad Dhadhi 1988 SCM R 82. In this case it was held that when the affidavit was not strictly in conformity with form No.5. Court should direct plaintiff to file affidavit strictly in accordance with form prescribed. 1t was further held that proceeding straightaway to non-suit plaintiff just for defective form of affidavit without giving opportunity to rectify formal defect was wholly to be tiled under Order XI, rule 21, C.P.C. This judgment is certainly distinguishable because in the case in hand the affidavit has not been filed at all while in the precedent case affidavit was filed but it was not strictly in accordance with the prescribed form. The case of Messrs Chaudhri Textile Mills and others v. United Bank Limited 1987 CLC 1957 has also been cited, but the principle enunciated in this case has no relevancy to the facts of the present case. In the case of Chaudhri Textile Mills leave to defend was disallowed by the Special Court but High Court observed that it would be enough if it could be perceived that the grounds mentioned in the application seeking leave to defend the suit formed a plausible defence to displace rebuttable presumptions. The appellants were thus allowed to defend the suit. The question of non-tiling of affidavit was not involved in that case.

4. Under Order XXXVII, rule 2 of the Code of Civil Procedure, in case of suits based on negotiable instruments in which summary procedure has to be adopted the defendant cannot be allowed to appear or (sic) in accordance with the procedure provided in rule 3 of Order XXXVII ibid. Rule 3(1) reads:- "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."

It is thus evident that leave to appear and defend the suit is to be based upon affidavit to be sworn by the defendant. In the present case, no affidavit sworn by the defendant was filed along with the application seeking permission to defend the suit. In Bagh Ali v. Habib Bank Ltd. Etc. PLD 1986 Lab.

124 it was observed:- "This application was also not accompanied by affidavit which was required to be filed under sub- rule (1) of rule 3 of Order XXXVII of the Code of Civil Procedure. Learned District Judge was, therefore, justified in not allowing leave to the appellant to defend V' he suit. It has been laid down in sub-rule

(2) of rule 2 of Order XXXVII 4 the said Code that if no leave is obtained, averments in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree. Since leave to defend the suit was not granted to the appellant, !Learned District Judge had rightly passed decree in favour of respondent No.l (plaintiff) by taking allegations in the plaint as having been admitted."

In Messrs Shahzad Ice Factory and 2 others v. Special Judge Banking (11), Lahore and another PLD 1982 Lab. 92, an order passed without any application supported by affidavit as contemplated by Order XXXVII, rule 3, was held to have been passed without jurisdiction and as being illegal and arbitrary.

In the present case, as already st1ted, the application submitted by the appellant seeking leave to defend the suit was no 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.

5.In the light of the above discussion, there is no merit in the present appeal. It is, therefore, dismissed with costs.