Sardar ABDUR REHMAN vs FIDA HUSSAIN
This appeal arises from a civil matter where the District Judge, Mansehra, passed a decree for the recovery of Rs. 22,000 against the appellant under the summary procedure of Order 37, Code of Civil Procedure 1908. The trial court refused the appellant's petition for leave to defend solely because the accompanying affidavit was not attested. The core legal question was whether a court, when exercising summary powers, should reject a petition for leave to defend on a technicality such as an unattested affidavit without granting an opportunity for rectification. The Peshawar High Court held that the trial court acted with undue haste, noting that while summary procedures aim for speedy justice, they must not result in the denial of substantial rights. The Court ruled that the trial judge should have exercised discretion under Section 148, Code of Civil Procedure 1908, to allow the defendant time to attest the affidavit. Consequently, the decree was set aside, and the case was remanded for a decision on the merits of the leave to defend petition.
- Can a court reject a petition for leave to defend in a summary suit solely due to the lack of attestation on an affidavit?
- Does a trial court have the power under Section 148 of the Code of Civil Procedure 1908 to grant time for the attestation of an affidavit in a summary suit?
- Should judicial discretion be exercised liberally in summary proceedings to prevent the denial of substantial rights on technical grounds?
- Order 37 Rule 1, Code of Civil Procedure 1908
- Order 37 Rule 2, Code of Civil Procedure 1908
- Section 148, Code of Civil Procedure 1908
' The respondent Fida Hussain who was present on the last date is absent despite notice having been personally served upon him. Placed ex parte.
2. This is an appeal by Sardar Abdur Rehman defendant against whom the learned District Judge, Mansehra had passed a decree for the recovery of Rs,22,000 on 12-6-1994 under Order 37, Rules 1 and 2, C.P.C. On one and the only ground that the affidavit on petition for leave to defend dated 17- 5-1994 had not been attested. The leave to defend was refused.
3. The mode of disposal resorted to by the learned District Judge was even faster than the summary procedure provided under Order 37, C.P.C. The summary powers are always given to experienced judicial officers so that the justice is imparted speedily without doing injustice.
4. While rejecting the petition for leave to defend the learned District Judge became unmindful of the fact that the defendant could be asked there and then to get the affidavit attested or could extend reasonable time for such attestation, under his powers defined by section 148, C.P.C. No doubt, a justice delayed is a justice denied but hastily imparted justice denying a substantial right to a party, is equally a justice denied.
5. A similar situation had arisen before Karachi High Court in "Emirates Bank International v. United Exports Limited and 8 others" (PLD 1993 Karachi 661) where leave to defend was refused on a similar flimsy ground. It was held that in proceedings which were already of summary nature, such discretions must be liberally exercised. In the present case it appears that the defendant is burdened with a decree of Rs,22,000 not because he had obtained a loan or not because he had executed a promissory note or not because he had not filed a petition for leave to defend or not because such petition was not within 10 days but because the affidavit on the petition was not attested. What a judicial appreciation?
6. The impugned decree dated 12-6-1994 is not sustainable in law. The appeal is accepted, the impugned decree is set aside and the case is remanded back to the learned District Judge, Mansehra for affording an opportunity to the defendant to get his affidavit attested and thereafter to consider petition for leave to defend on merits. The appellant-defendant shall appear before the District Judge, Mansehra on 12-3-1996 while the plaintiff shall be summoned by the learned Court itself.
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