HAZOOR BAKHSH vs GHULAM FARID
This civil appeal arises from a judgment and decree passed by the trial Court decreeing a recovery suit filed under Order XXXVII of the Code of Civil Procedure 1908 without recording evidence, after the appellant failed to comply with a conditional order requiring the deposit of cash to secure leave to appear and defend. The core legal question was whether the trial Court was justified in imposing a harsh condition for granting leave to defend and in decreeing the suit without recording evidence when the defendant's application disclosed a plausible defence. The Lahore High Court held that the appellant's application did disclose a plausible cause, entitling him to unconditional leave to defend, and that decreeing the suit without evidence under such circumstances was unsustainable. The Court laid down the principle that where a defendant's application for leave to appear and defend under Order XXXVII of the Code of Civil Procedure 1908 discloses a plausible defence, leave must be granted unconditionally, and suits cannot be summarily decreed without evidence upon failure to meet unwarranted conditions.
- Is a defendant entitled to unconditional leave to appear and defend a suit under Order XXXVII of the Code of Civil Procedure 1908 when the application discloses a plausible defence?
- Can a trial Court decree a recovery suit under Order XXXVII of the Code of Civil Procedure 1908 without recording evidence upon the defendant's failure to comply with a conditional order for leave to defend?
- Order XXXVII, Code of Civil Procedure 1908
The relevant facts are that the respondent filed a suit under Order XXXVII, C.P.C.. For recovery of Rs.17,000 on the basis of a pronote. The appellant/defendant appeared and moved an application for leave to appear and defend the suit. The application was allowed, subject to the appellant's depositing Rs.8,500 in cash. The appellant could not comply with the condition. Thereafter, the trial Court, vide judgment and decree, dated 14-12-1982, decreed the suit without recording evidence.
Now this appeal, which was admitted to regular hearing and notice was issued to the respondent, who, in spite of service, is not present, therefore, he is proceeded ex parte.
2. It is argued that the trial Court did not appreciate that the application of the appellant for leave to appear and defend the suit disclosed a plausible defence, therefore, he was entitled to leave without any condition. It is added that the condition was harsh and unjustified. The arguments are summed up with the submission that in any case, in the circumstances, the trial Court should have decided the suit after recording the evidence. In this behalf, reliance has been placed on Muhammad Aslam v. Falak Sher 1990 CLC 1119. Nobody has entered appearance on behalf of the respondent to contest this appeal.
3. I have given my anxious consideration to the arguments advanced by the learned counsel for the appellant and gone through the record. The application of the appellant for leave to appear and defend the suit disclosed plausible cause, therefore, he was entitled to the grant of leave without any condition.
4. The upshot of the above discussion is that the impugned judgment and decree is set aside by accepting this appeal. The result is that the leave would be deemed to have been granted to the appellant without any condition. The suit is remanded to the trial Court with a direction to decide the same on merits in accordance with law.
There is no order as to costs.