As noted above, the petitioner is aggrieved of the impugned order dated 08.08.2020, whereby the application on behalf of respondent No.2 was entertained by the learned Trial Court, despite the fact that the leave to appear and defend has not yet been granted to him. In this behalf, the case law relied upon by the learned counsel for the petitioner is instructive. In “Syed Itrart Hussain Rizvi Vs. Messrs Tameer MICRO Finance Bank Limited through Attorney and another (2018 CLD 116), the Hon’ble Sindh High Court held as follows:
“It is now a well settled that in a summary suit under Order XXXVII of C.P.C., in which summons have been issued in Form No.4 Appendix B, the defendant is not entitled to appear or defend the suit as a matter of course unless he obtains leave from the Court so to appear and defend. In default of his obtaining such leave for his appearance and defence in pursuance thereof the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree. Till such time as leave to defend is granted the defendants cannot even file interlocutory application in order to agitate the point of jurisdiction or to question the transactions between the parties or to challenge validity, and legal effect of the promissory note and crossed cheque issued by them in favour of the plaintiffs. In this regard, reliance can be placed on the case of Messrs United Distributors Pakistan Limited v. Ahmad Zarie Services and another (1997 MLD 1835) wherein this Court has held as under: "5. At the outset it may be observed that in a suit based upon negotiable instrument in which summons have been issued in Form No.4 Appendix B, the defendant is not entitled to appear or defend the suit as a matter of course unless he obtains leave from the Court so to appear and defend. In default of his obtaining such leave for his appearance and defence in pursuance thereof the allegations in the plaint shall be deemed to be admitted and the plaintiffs shall be entitled to a decree. The advantage in adopting the procedure prescribed by Order XXXVII, C.P.C. is that the defendant is not, as a matter of right, entitled to appear or to defend, but if he deserves to be heard he must apply to the Court for permission to appear and defend within 10 days of service of summons as envisaged by Article 159 of the Limitation Act. Till such time as leave to defend is granted the defendants cannot even file interlocutory application in order to agitate the point of jurisdiction or to question the transactions between the parties or to challenge validity, and legal effect of the promissory note and crossed cheque issued by them in favour of the plaintiffs. In my view these issues can be decided at the trial after recording evidence after leave to defend is granted to the defendants on disclosing a sufficient cause." 8. In the present case since the appellant failed to file leave to appear and defend the case in the suit, therefore, the learned trial court [respondent No.2] had rightly dismissed the application under Order VII, rule 10, C.P.C. filed by the appellant/defendant for return of plaint and subsequently after recording evidence of Respondent No.1/plaintiff decreed the suit”.
Part of Judgment
0 Comments