Leave to Defend the Suit.
Judgements of Lahore High Court.
2021 MLD 1473 O.XXXVII, Rr.2 & 3---Suit for recovery of money on the basis of negotiable instrument---leave to defend the suit---Pre-conditions--- Summoning of bank record---Respondent-plaintiff sought recovery of money on the basis of dishonoured cheque---Application for leave to defend the suit filed by petitioner-defendant was dismissed by Trial Court after consulting record summoned from Bank---Validity---In order to satisfy itself to the contents of leave to appear and defend, the Court was required not to act in a mechanical manner---Trial Court had to apply its judicial mind to the contents of application for leave to appear and defend---Trial Court was not debarred to probe and conduct such inquiry so as to satisfy itself as to the genuineness and plausibility of defence of defendant---Plaintiff in such suit was not debarred to move application for summoning a document in custody of any person which prima facie would establish before Court that defence taken in application for leave to appear in summary suit was sham and illusory---Trial Court rightly summoned record from Bank duly supported by an affidavit to controvert stance of petitioner-defendant---Revision was dismissed in circumstances.
2017 YLRN 69
O. XXXVII, Rr. 2 & 3---Constitution of Pakistan, Art. 10-A---Summary suit on negotiable instrument---Application for leave to appear and defend the suit---Right of fair trial---Scope---Application for leave to appear and defend the suit was dismissed and suit was decreed---Validity---Defendant produced documents along with application seeking leave to defend the suit in support of his version apart from the affidavit sworn by him---Question whether cheque was without consideration after amount having been paid, or otherwise, was a factual controversy---No one could be condemned unheard---Factual controversy could be resolved after recording evidence---Defendant had made out a case for grant of leave to defend the suit---Fair opportunity had not been provided to the defendant to prove his version---Impugned judgment and decree were set aside---Application filed by the defendant (appellant) for leave to defend the suit was allowed subject to furnishing security equal to the suit amount to the satisfaction of Trial Court within a specified period---Trial Court was directed to conclude the case expeditiously within a specified time---Appeal was accepted, in circumstances.
2017 CLCN 126
O. XXXVII, Rr. 3(2), 2, 1 & S. 151---Summary procedure on negotiable instrument---Grant of leave to defend in suit for recovery under O. XXXVII, C.P.C.---Imposition of surety upon defendant---Discretion of Trial Court, exercise of---Scope---Suit for recovery---Application for leave to defend was allowed by Trial Court conditional upon defendant tendering surety bond---Upon failure to tender such surety, grant of leave to defend was subsequently recalled---Contention of defendant, inter alia, was that grant of leave to defend could not be recalled and that imposition of condition of surety bond was not a pre-requisite under O. XXXVII, C.P.C.---Validity---Order for grant of conditional leave to defend was passed after providing full opportunity of hearing to the defendant, who without showing a good defence, pleaded for grant of unconditional leave to defend ---Trial Court, in circumstances, passed a well reasoned order granting leave to defend to the defendant subject to surety bond and Trial Court exercised its discretion as legally vested in it by law---Impugned order of Trial Court could not be interfered with---Revision was dismissed, in circumstances.
2017 YLRN 391
O. XXXVII, Rr. 2 & 3---Summary suit on the basis of cheque---Leave to appear and defend the suit, application for---Scope---Application for leave to appear and defend the suit was allowed subject to furnishing of surety bond---Validity---Court having cognizance of the matter had to consider as to under what condition it was inclined to grant leave to defend to the defendant---leave to defend might be given unconditionally or subject to such terms as to payment into Court, giving security or otherwise as the Court deemed fit---Court having cognizance of the matter had to decide the term on which leave to defend was to be given---Trial Court, in the present case, had taken into consideration the facts of the case and with conscious application of mind granted leave to appear and defend to the defendants which was fair exercise of jurisdiction vested in it---No illegality or perversity had been pointed out in the impugned order passed by the Trial Court---Revision was dismissed in circumstances.
2016 MLD 1553
O. XXXVII, Rr. 2 & 3---Suit for recovery of money on the basis of cheque---Application for leave to appear and defend the suit---Scope---Facts supported by affidavit---Substantial question of fact---Plausible defence---Scope---Defendant filed application for leave to appear and defend the suit which was dismissed and suit was decreed---Contention of defendant was that plaintiff had committed theft of his cheque---Validity---Defendant moved application for leave to appear and defend the suit within time---Court could rarely refuse leave to defend application where defendant had not failed to disclose any defence---Real question to be determined would be whether leave should be conditional or unconditional---Where defence had raised and disclosed a triable issue or a plausible defence or a prima facie case was made out then leave should be granted as a rule---Court should neither go into the merits of the case to determine if defence was good nor it should go into the truth or falsity of the defence---If plausibility of defence so raised appeared to be determinative then court must exercise its jurisdiction in favour of defendant while providing him opportunity to defend the suit---If court while deciding the application for leave to appear and defend the suit had reached to the conclusion that apparently defence was not bonafide but same required recording of evidence then leave could be granted by imposing equitable condition for due performance of decree---Such condition should not be harsh, unjust and oppressive---Defence raised by the defendant in the present case was not illusory---Said defence required recording of evidence for its proof or disproof which could not be determined without proper inquiry---Application for leave to defend was supported by affidavit which was not controverted by filing counter affidavit---Any person acquainted with facts might make a declaration of the same in writing and sworn on oath by an affidavit---Any application supported by an affidavit if not controverted by counter affidavit alongwith written reply should be taken as correct statement of fact---Defendant had succeeded to disclose a plausible defence while raising substantial question of fact which required to be tried or investigated---Defendant was entitled for leave to appear and defend the suit---Trial Court, in the present case, had failed to exercise its jurisdiction judiciously and properly and impugned order had been passed in a hasty manner---Defendant had admitted his signatures over the cheque so he was liable to be burdened with the condition to satisfy the decree if ultimately passed against him---Impugned judgment and decree passed by the Trial Court were set aside---Application for leave to defend the suit was accepted subject to deposit of specified amount in cash and furnishing of surety bond to the extent of remaining amount before the Trial Court within specified period---Defendant was directed to appear before the Trial Court on the date fixed for further proceedings---Appeal was allowed in circumstances.
O. XXXVII, Rr. 2 & 3---Suit for recovery of money on the basis of negotiable instrument---leave to defend the suit---Scope---Court could rarely refuse leave to defend application where defendant had not failed to disclose any defence---Real question to be determined would be whether leave should be conditional or unconditional---Where defence had raised and disclosed a triable issue or a plausible defence or a prima facie case was made out then leave should be granted as a rule---Court should neither go into the merits of the case to determine if defence was good nor it should go into the truth or falsity of the defence---If plausibility of defence so raised appeared to be determinative then court must exercise its jurisdiction in favour of defendant while providing him opportunity to defend the suit---If court while deciding the application for leave to appear and defend the suit had reached to the conclusion that apparently defence was not bonafide but same required recording of evidence then leave could be granted by imposing equitable condition for due performance of decree---Such condition should not be harsh, unjust and oppressive.
2016 CLCN 4
O. VII, R.10, O.XXXVII, R. 3 & O. XLIII, R. 1(a)---Bond---Promissory note---Distinction---Suit for recovery of money on the basis of negotiable instrument---Return of plaint---Promissory note signed by witnesses---Defendant was granted leave to defend the suit subject to condition of filing surety bond but he failed to do the needful, resultantly his defence was struck off and case was fixed for ex parte evidence---On application of defendant plaint was returned to plaintiff on the ground that promissory note in question was signed by witnesses, therefore, it was a bond and suit should be filed in civil court of ordinary jurisdiction---Plea raised by plaintiff was that since defence of defendant was struck off, therefore, he was not entitled to participate in proceedings and Trial Court should have dismissed application under O.VII, R.10, C.P.C., filed by defendant---Validity---After striking off defence of defendant lis was fixed for ex parte evidence of plaintiff and Trial Court even in absence of defendant was required to satisfy itself with reference to competency of the suit, its jurisdiction as well as merits of the case on legal as well as factual premises---Though defendant was not entitled to participate in proceedings but the same would not render the order nullity in the eye of law on such score---High Court declined to interfere in order passed by Trial Court---Appeal was dismissed in circumstances.
2014 CLC 955
O. XXXVII, Rr. 2 & 3---Recovery suit based on negotiable instrument---Application for leave to appear and defend the suit---Contention of plaintiff was that leave to appear and defend the suit should be granted subject to some payment or furnishing a reasonable security---Validity---No condition was necessary for granting leave to appear and defend the suit by furnishing any sort of security or any payment---Trial Court, granting application for leave to defend had passed the impugned order while looking into the relevant material placed on the file which could not be termed as illegal or unlawful one---Revision was dismissed in limine.
2013 CLD 25
O. XXXVII, R. 3---Suit for recovery---Direction to the defendant lo deposit disputed amount in court---Scope---Application for leave to defend by the defendant was allowed with the direction to the defendant to deposit the recovery amount in the court---Defendant contended that condition on the defendant for depositing the said amount with the court was arbitrary and therefore, the order of the Trial Court should be set aside to such extent---Validity---Court under O. XXXVII, Rule 3, C.P.C. had the discretion to grant leave to defend conditionally or unconditionally and could, amongst other things, direct payment of the amount in dispute to be deposited with the court ----No illegality in the impugned order having been found, revision was dismissed.
2013 CLC 85
O. XXXVII, R. 3---Suit for recovery---Direction to the defendant lo deposit disputed amount in court---Scope---Application for leave to defend by the defendant was allowed with the direction to the defendant to deposit the recovery amount in the court---Defendant contended that condition on the defendant for depositing the said amount with the court was arbitrary and therefore, the order of the Trial Court should be set aside to such extent---Validity---Court under O.XXXVII, Rule 3, C.P.C. had the discretion lo grant leave to defend conditionally or unconditionally and could, amongst other things, direct payment of the amount in dispute to be deposited with the court ----No illegality in the impugned order having been found, revision was dismissed.
O. XXXVII, R. 3---Suit for recovery---Direction to the defendant lo deposit disputed amount in court---Scope---Application for leave to defend by the defendant was allowed with the direction to the defendant to deposit the recovery amount in the court---Defendant contended that condition on the defendant for depositing the said amount with the court was arbitrary and therefore, the order of the Trial Court should be set aside to such extent---Validity---Court under O.XXXVII, Rule 3, C.P.C. had the discretion lo grant leave to defend conditionally or unconditionally and could, amongst other things, direct payment of the amount in dispute to be deposited with the court ----No illegality in the impugned order having been found, revision was dismissed.
2013 CLD 25
O. XXXVII, R. 3---Suit for recovery---Direction to the defendant lo deposit disputed amount in court---Scope---Application for leave to defend by the defendant was allowed with the direction to the defendant to deposit the recovery amount in the court---Defendant contended that condition on the defendant for depositing the said amount with the court was arbitrary and therefore, the order of the Trial Court should be set aside to such extent---Validity---Court under O. XXXVII, Rule 3, C.P.C. had the discretion to grant leave to defend conditionally or unconditionally and could, amongst other things, direct payment of the amount in dispute to be deposited with the court ----No illegality in the impugned order having been found, revision was dismissed.
2012 CLD 1060
O. XXXVII, Rr. 2 & 3---Suit for recovery of amount on basis of pro note---Application for leave to defend suit---Suit decreed after dismissal of such application---Defendant's plea was that he was not served in terms of provisions of R. 2 of O.XXXVII, C.P.C.; and that his counsel appeared on 19-12-2007, but court did not warn him that same was the last day for filing leave application, rather adjourned proceedings to 10-1-2008 for filing power of attorney and written statement---Validity---Record showed that neither defendant was served with summons in Form IV, Appendix-B nor was copy of plaint attached thereto---Underlying purpose of issuance of summons in Form IV accompanying plaint and reflecting principal amount due, interest thereon and cost upon defaulting party would be to intimate defendant of his rights in law in suit under special provisions of law---Delay or default in filing of leave application within prescribed period could not be attributed to a defendant, unless he was informed in required statutory mode and manner--- Trial Court on 19-12-2007 had not handed over copy of plaint to defendant for filing of leave application, rather had adjourned proceeding for 10-1-2008 for filing written statement---Filing of leave application on 10-1-2008 could not be said to be time-barred due to negligence on his part, rather he had been victim of such act of Trial Court---Requirements of law had not been fulfilled while serving summons upon defendant---Defendant alone could not be made to undergo penal consequences in face of contributory negligence on part of Trial Court---Impugned decree was nullity in the eye of law--- Trial Court had not exercised its jurisdiction in accordance with law--- High Court set aside impugned decree and directed Trial Court to decide leave application on merits in accordance with law.
2012 CLD 98
O. XXXVII, Rr.2 & 3---Negotiable Instruments Act (XXVI of 1881), S.118(a)---Suit for recovery of amount on the basis of Promissory Note---Petition for leave to defend suit---Words "until the contrary was proved" occurring in S.118(a), Negotiable Instruments Act, 1881---Connotation---Maker of the promissory note furnished an unconditional undertaking to pay on demand or at a fixed or determinable future time the amount mentioned therein---Under S.118(a) of the Negotiable Instruments Act, 1881, a presumption was attached to the negotiable instrument that it was for consideration---Words "until the contrary was proved" as used in S.118 of Negotiable Instruments Act, 1881, had revealed that said presumption was rebuttable and the maker of instrument, even if he admitted the execution and had signed the same, could lawfully prove that the same was without consideration---Onus to prove the same would lay on the maker---In the present case, defendant had categorically contended that the promissory note and the cheques were obtained as guarantee on account of mutual trust and same were without consideration---No counter-affidavit in that regard was filed along with the reply---Trial Court, in circumstances, should have not declined to grant the leave to defend as cogent reasons for allowing the same did exist---Whenever the court was satisfied that plausible defence had been put forth by the defendant, then the grant of leave to defend under O.XXXVII, R.3, C.P.C. was necessary and expedient for ends of justice---By disallowing the petition for leave to defend and consequently on passing the impugned judgment and decree, Trial Court had committed material illegality causing gross miscarriage of justice---Impugned judgment and decree were set aside, and petition for leave to defend moved by the defendant was accepted, in circumstances.
PLD 2012 Lahore 204 O. V, R. 21, O. XXXVII, Rr. 2 & 3---Limitation Act (IX of 1908), S. 5 & Art. 156---Suit for recovery of amount on basis of cheque---Defendant residing within territorial jurisdiction of another court---Delay in filing leave application, condonation of---Plaintiff voluntarily appeared in court on 7-8-2010 and 24-8-2010 before Duty Judge and filed leave application on 2-9-2010---Dismissal of leave application for being time barred---Validity---Record showed that defendant had neither been issued ordinary summons in terms of O. V, R. 21, C.P.C. nor substituted service in accordance with law nor summons in Form 4 of Appendix-B, C.P.C. along with copy of plaint---Court was obliged to issue summons to defendant in Form 4 along with copy of plaint informing him that he had specified limited period to approach court for getting leave to defend suit, otherwise his right to defend suit would be struck down---Court's proceedings did not show that subsequently any warning for seeking leave to defend suit had been given to defendant or an order for handing over him copy of plaint was passed---Such omissions on part of Trial Court was major cause of filing leave application out of time---Had Trial Court warned defendant after handing over him copy of plaint for filing leave application, then position would have been altogether different---Trial Court had violated basic provisions of law---Defendant alone could not be made to undergo penal consequences in face of contributory negligence on part of court---Act or omission of court would not suffer or prejudice anyone Filing of leave application on 2-9-2010 was not due to negligence of defendant only, rather he had been victim of act of court, which furnished sufficient cause for condondation of delay---High Court set aside impugned order while directing Trial Court to decide leave application on merit in accordance with law.
2012 CLC 69
O. XXXVII, Rr.2 & 3---Negotiable Instruments Act (XXVI of 1881), S.118(a)---Suit for recovery of amount on the basis of Promissory Note---Petition for leave to defend suit---Words "until the contrary was proved" occurring in S.118(a), Negotiable Instruments Act, 1881---Connotation---Maker of the promissory note furnished an unconditional undertaking to pay on demand or at a fixed or determinable future time the amount mentioned therein---Under S.118(a) of the Negotiable Instruments Act, 1881, a presumption was attached to the negotiable instrument that it was for consideration---Words "until the contrary was proved" as used in S.118 of Negotiable Instruments Act, 1881, had revealed that said presumption was rebuttable and the maker of instrument, even if he admitted the execution and had signed the same, could lawfully prove that the same was without consideration---Onus to prove the same would lay on the maker---In the present case, defendant had categorically contended that the promissory note and the cheques were obtained as guarantee on account of mutual trust and same were without consideration---No counter-affidavit in that regard was filed along with the reply---Trial Court, in circumstances, should have not declined to grant the leave to defend as cogent reasons for allowing the same did exist---Whenever the court was satisfied that plausible defence had been put forth by the defendant, then the grant of leave to defend under O.XXXVII, R.3, C.P.C. was necessary and expedient for ends of justice---By disallowing the petition for leave to defend and consequently on passing the impugned judgment and decree, Trial Court had committed material illegality causing gross miscarriage of justice---Impugned judgment and decree were set aside, and petition for leave to defend moved by the defendant was accepted, in circumstances.
2012 CLC 1141
O. XXXVII, Rr. 2 & 3---Suit for recovery of amount on basis of pro note---Application for leave to defend suit---Suit decreed after dismissal of such application---Defendant's plea was that he was not served in terms of provisions of R. 2 of O.XXXVII, C.P.C.; and that his counsel appeared on 19-12-2007, but court did not warn him that same was the last day for filing leave application, rather adjourned proceedings to 10-1-2008 for filing power of attorney and written statement---Validity---Record showed that neither defendant was served with summons in Form IV, Appendix-B nor was copy of plaint attached thereto---Underlying purpose of issuance of summons in Form IV accompanying plaint and reflecting principal amount due, interest thereon and cost upon defaulting party would be to intimate defendant of his rights in law in suit under special provisions of law---Delay or default in filing of leave application within prescribed period could not be attributed to a defendant, unless he was informed in required statutory mode and manner---Trial Court on 19-12-2007 had not handed over copy of plaint to defendant for filing of leave application, rather had adjourned proceeding for 10-1-2008 for filing written statement---Filing of leave application on 10-1-2008 could not be said to be time-barred due to negligence on his part, rather he had been victim of such act of Trial Court---Requirements of law had not been fulfilled while serving summons upon defendant---Defendant alone could not be made to undergo penal consequences in face of contributory negligence on part of Trial Court---Impugned decree was nullity in the eye of law---Trial Court had not exercised its jurisdiction in accordance with law---High Court set aside impugned decree and directed Trial Court to decide leave application on merits in accordance with law.
2012 CLC 748
O. XXXVII, Rr.1, 2, 3---Suit for recovery of amount on the basis of a cheque---Application for leave to defend suit---Defendant was summoned through ordinary notice and summons---Defendant filed written statement and court struck off right of defendant to defend suit on the ground that he did not file application for condonation of delay in filing application for leave to defend suit---Specific procedure had been laid down for summary suits under O.XXXVII, C.P.C.---Notices and summons were issued to the defendant as if it was an ordinary suit for recovery of amount---Under provisions of Sub-rule 1, 2 of R.2 of O.XXXVII, C.P.C., in all suits upon bills of exchange, hundies or promissory notes, a plaint would be presented in the form prescribed and the summons would be on the Form No.4 in Appendix 'B' of Schedule to C.P.C.---When the notices/summons were not issued on the prescribed form available in the Schedule of C.P.C., defendant would not be at fault---Maxim "Actus curiae neminem gravabit" (no act of the court would prejudice no man), was fully engrained in the system of administration of justice---Trial Court could treat the written statement as an application for leave to appear and defend the suit to meet the ends of justice---Impugned order was set aside with observations that written statement filed by the defendant, would be treated as an application for leave to appear and defend the suit, and in support whereof, the defendant could file an affidavit.
2011 MLD 1024
O. XXXVII, Rr.2, 3 & 4---Limitation Act (IX of 1908), Art.159---Suit for recovery of amount upon bill of exchange etc.---Application to defend the suit without affidavit---Effect---Trial Court passed ex parte decree---Defendant's application for setting aside the ex parte decree was allowed---Defendant, after lapse of 24 days from submission of application for setting aside the ex parte decree, filed application for leave to appear and defend the suit which was allowed by the Trial Court---Plaintiff contended that the application for setting aside the ex parte decree should have been accompanied by the application for leave to appear and defend the suit and that the application for leave to appear and defend was not accompanied by affidavit---Validity---Trial Court illegally entertained the application for leave to appear and defend the suit---Defendant had the knowledge of the institution of the suit when he made application for setting aside the ex parte decree---Where application for leave to defend was not filed with application for setting aside the ex parte decree, the same had to be filed within 10 days of the service of notice or the knowledge as per requirement of Art.159 of the Limitation Act, 1908---Application for leave to defend was barred by tine---Affidavit was the basic document under O. XXX VII, R.3, C.P.C. which should disclose such facts as would make it incumbent upon plaintiff to prove the consideration---Application seeking leave to appear and defend the suit without affidavit could not be entertained---Impugned order were set aside---Allegations made in the plaint were held to have been admitted by the defendant on account of his failure to obtain the required leave---Plaintiff was entitled to a decree in circumstances.
2011 MLD 1350
O.XXX VII, Rr. 2, 3 & 4---Suit for recovery of money on basis of negotiable instrument-Non-filing of application by defendant within 10 days for grant of leave to defend ---Passing of ex parte decree---Dismissal of defendant's first application for setting aside order of ex parte proceedings---Dismissal of defendant's second application under O. XXXVII, R. 4, C.P. C. for setting aside ex parte decree---Validity--Defendant had not assailed ex parte decree within period of limitation, thus, same had attained finality---Application for setting aside ex parte order being incompetent had rightly been dismissed by Trial Court---High Court dismissed appeal in circumstances.
2011 MLD 1249
O. XXXVII, Rr. 2 & 3---Suit for recovery of amount on basis of dis-honored cheque---leave to defend suit, application for---Defendant's plea that son-in-law of plaintiff was Accountant of defendant, who while leaving job without intimation took away books of accounts and cheque books belonging to defendant; that before filing suit by plaintiff, defendant had registered criminal case against plaintiff and his son-in-law---Trial Court accepted leave application subject to furnishing of Bank guarantee by defendant equal to suit amount---Validity---Imposition of condition was discretion of court which should not be harsh---Defendant had plausible defence---Instead of imposing harsh condition of submission of bank guarantee, defendant could be directed to submit personal surety bond or surety of any other person supported by documents of title of immovable property having value equal to suit amount---High Court modified impugned order and directed defendant to submit such bond within specified time.
2011 MLD 1249
O. XXXVII, Rr. 2 & 3---Suit for recovery of amount on basis of negotiable instrument---leave to defend suit---Imposition of condition by court while granting such leave---Scope---Imposition of condition being discretion of court, such condition should not be harsh.
2011 CLD 1058 O. XXXVII, Rr. 2 & 3---Suit for recovery of amount on basis of dishonored cheque---leave to defend suit, application for--Defendant's plea that son-in-law of plaintiff was Accountant of defendant, who while leaving job without intimation took away books of accounts and cheque books belonging to defendant; that before filing suit by plaintiff, defendant had registered criminal case against plaintiff and his son-in-law---Trial Court accepted leave application subject to furnishing of Bank guarantee by defendant equal to suit amount---Validity---Imposition of condition was discretion of court which should not be harsh---Defendant had plausible defence---Instead of imposing harsh condition of submission of bank guarantee, defendant could be directed to submit personal surety bond or surety of any other person supported by documents of title of immovable property having value equal to suit amount---High Court modified impugned order and directed defendant to submit such bond within specified time.
PLD 2011 Lahore 473
O. XXXVII, Rr.1, 2 & 3---Suit for Recovery of money---Application for leave to defend suit---Summary procedure---Plaintiff Trust filed suit against defendant bank for not encashing bank cheques for the reason that account in question was blocked---Trial Court dismissed the suit being not maintainable on the ground that relationship of debtor and creditor and existence of loan were absent---Validity---Where summary procedure was not attracted, the suit could be proceeded with as an ordinary suit and jurisdiction of Court in such regard was not barred---Reasons given by Trial Court for dismissing the suit of plaintiff Trust were neither sustainable nor line with dicta of superior courts---High Court refrained from recording any finding on the defences raised by defendants in their application for leave to appear and defend the suit as the same would be decided by Trial Court on its own merits---High Court set aside the judgment passed by Trial Court and remanded the case to trial Court for deciding suit as well as application for leave to defend the case afresh---Appeal was allowed accordingly.
2011 CLD 1058
O. XXXVII, Rr. 2 & 3---Suit for recovery of amount on basis of negotiable instrument---leave to defend suit--Imposition of condition by court while granting such leave---Scope---Imposition of condition being discretion of court, such condition should not be harsh.
2010 MLD 198
O. XXXVII, Rr.2, 3 & O. VII, Rr.10, 11---Suit for recovery of amount on basis of cheques---Leave to appear and defend suit---Application for return and rejection of plaint---On filing summary suit by the plaintiff under O.XXXVII, Rr.2, 3, C. P. C. for recovery of amount, defendant filed an application under O. VII, R.11, C.P.C. for rejection of plaint, which application was dismissed being pre-mature--Simultaneously defendant moved application for leave to appear and defend suit which was allowed and the defendant was granted conditional leave to appear and defend the suit---Instead of complying with the conditional order, defendant once again resorted to an application under O. VII, R.10, C.P. C. for return of plaint and Trial Court proceeded to dismiss application of the defendant filed for return of plaint---Defendant had filed revision against said order of dismissal---Defendant, in said application did not controvert the claim of the plaintiff and raised the core ground of jurisdiction---Defendant having submitted to the jurisdiction of the court as also questioning its jurisdiction in the application for leave to defend , which was appreciated and conditional leave was granted, he was estopped by its conduct to behave in a hasty manner---According to the assertion of defendant in the application of leave to appear and defend, the issues of law and fact required detailed consideration, but instead of waiting for their adjudication by' the Trial Court, defendant resorted to the provisions of R.10 of Order VII, C.P.C. praying for return of the plaint---Dismissal of said application by the Trial Court, in circumstances, was not open to any exception---Leave to appear and defend the suit conditional, without fulfilling the condition, defendant could not move a step forward much less questioning jurisdiction of the court---Question of jurisdiction was the pivotal question before the Trial Court and any finding on the question in revisional jurisdiction by High Court would amount to usurp the jurisdiction of the Trial Court---Defendant would be at liberty to urge the question of jurisdiction in the written statement-Impugned order being not whimsical, arbitrary, perverse or capricious, could not be interfered with in revisional jurisdiction.
2010 CLC 689
O. XXXVII, Rr.2 & 3---Suit for recovery of money---leave to defend suit---Discretion---Exercise of---Scope---Even after the dismissal of application for leave to defend , Trial Court was not obliged to decree the suit straightway---Trial Court could ask the plaintiff to produce evidence in support of his claim and in that eventuality defendant could have participated in the proceedings---No prejudice would be caused to the defendant by the impugned order---Law favoured adjudication of lis on merits--Discretion exercised by the Trial Court for advancement of the said principle of law could not be interfered in revisional jurisdiction.
2009 CLC 308
O. XXXVII, Rr.2 & 3---Negotiable Instruments Act (XXVI of 1881), Ss.4 & 13---Suit for recovery of amount on basis of Call Deposit Receipts issued by Bank---Application for leave to defend suit---Plea of defendant-Bank was that plaintiff in collusion with its Ex-Manager had stolen such receipts and filled and completed same subsequently; that bank had lodged F.I.R. and filed suit for cancellation of such receipts; and that such receipts were not promissory notes, thus, suit was not maintainable---Validity---Bank had alleged plaintiff to be party to fraud and theft of such receipts---No consideration or payment with regard to such receipts had been made---Lodging of F.I.R. and filing of suit by Bank supported its plea---Fraud alleged by Bank was not merely a bald allegation---Allegation of fraud could not be determined summarily as same would need recording of evidence---When controversy needed its resolution through evidence, then grant of leave would be the right course---Leave application was accepted.
2009 CLD 401
Ss.4 & 13---Civil Procedure Code (V of 1908), O. XXXVII, Rr.2 & 3--- Suit for recovery of amount on basis of Call Deposit Receipts issued by Bank--Application for leave to defend suit---Plea of defendant-Bank was that plaintiff in collusion with its Ex-Manager had stolen such receipts and filled and completed same subsequently; that bank had lodged F.I.R. and filed suit for cancellation of such receipts; and that such receipts were not promissory notes, thus, suit was not maintainable---Validity---Bank had alleged plaintiff to be party to fraud and theft of such receipts---No consideration or payment with regard to such receipts had been made---Lodging of F.I.R. and filing of suit by Bank supported its plea---Fraud alleged by Bank was not merely a bald allegation--Allegation of fraud could not be determined summarily as same would need recording of evidence---When controversy needed its resolution through evidence, then grant of leave would be the right course---Leave application was accepted.
2008 YLR 2324
O. XXXVII, Rr.2, 3 & O.XIV, R.5---Suit for recovery of amount on basis of a Promissory Note---leave to defend suit---Rectification of issues---Defendant was allowed to file written statement in the suit---Upon divergent pleadings of the parties two issues were framed and plaintiff who was directed to adduce his evidence to substantiate his claim, instead filed an application under O.XIV, R.5 C.P.C. for rectification of the issues, which application was accepted and a separate issue was framed---Defendant had admitted his signature/ thumb impression on the Promissory Note on the basis of which suit was filed by the plaintiff, but had stated that said Promissory Note was got executed under undue influence of the police and it was without consideration---Trial Court had rightly observed that onus to prove same and the receipt was upon defendant and rightly framed the issue in that regard---Trial Court in view of the pleadings of the parties, had rightly shifted the onus of proving the pro note and receipts upon the defendant because he himself admitted the signature---No illegality, irregularity, ambiguity or jurisdictional defect appeared to have been committed by the court below so as to warrant interference by the High Court in exercise of its revisional jurisdiction---Petition was dismissed.
2008 MLD 114
O.XXXVII, Rr. 2 & 3---Limitation Act (IX of 1908), Arts. 64-A & 73---Suit for recovery of amount on basis of cheques---leave to defend suit---Issuance of post-dated cheques as a condition of agreement between parties for supply of material---Suit was filed on 17-4-2003, while first cheque was dated 15-1-2000, second cheque was dated 1-3-2000 and third cheque was dated 15-4-2000---Application for leave to defend suit raising plea that Art. 73 of Limitation Act, 1908 would govern such matter providing three years' period commencing from date of bill of exchange---Validity---Suit under O.XXXVII, C.P.C. would be governed by Art. 64-A of Limitation Act, 1908 and starting point would be when debt became payable---Suit cheques according to agreement were to be presented on the dates mentioned thereon---Question of limitation with reference to Art. 64-A of Limitation Act, 1908 could not be determined without determining question of performance of such agreement after framing of issues and recording evidence thereon---leave to defend suit was granted subject to deposit of Rs.50,00,000 in cash by defendant and furnishing of company-guarantee by plaintiff in like amount to the satisfaction of court.
2008 CLC 287
O. XXXVII, Rr.2 & 3---Suit for recovery of amount on basis of pro note---Application for grant of leave to defend suit---leave to defend suit was granted subject to deposit of suit amount with Deputy Registrar of the Court which amount was to be invested in a profit bearing scheme---Amount had been deposited and invested accordingly in a profit bearing scheme---Condition thus stood complied with as said amount was deposited and invested as ordered by the High Court---Impugned judgment and decree of the Trial Court was set aside with the result that suit would be deemed to be pending in the Trial Court to whom the record along with a copy of said judgment would be remitted which would decide the suit in accordance with law.
2008 YLR 2324
O. XXXVII, Rr.2, 3 & O.XIV, R.5---Suit for recovery of amount on basis of a Promissory Note---leave to defend suit---Rectification of issues---Defendant was allowed to file written statement in the suit---Upon divergent pleadings of the parties two issues were framed and plaintiff who was directed to adduce his evidence to substantiate his claim, instead filed an application under O.XIV, R.5 C.P.C. for rectification of the issues, which application was accepted and a separate issue was framed---Defendant had admitted his signature/ thumb impression on the Promissory Note on the basis of which suit was filed by the plaintiff, but had stated that said Promissory Note was got executed under undue influence of the police and it was without consideration---Trial Court had rightly observed that onus to prove same and the receipt was upon defendant and rightly framed the issue in that regard---Trial Court in view of the pleadings of the parties, had rightly shifted the onus of proving the pro note and receipts upon the defendant because he himself admitted the signature---No illegality, irregularity, ambiguity or jurisdictional defect appeared to have been committed by the court below so as to warrant interference by the High Court in exercise of its revisional jurisdiction---Petition was dismissed.
2008 YLR 890 S. 148 & O. XXXVII, R. 3---Conditional leave to defend ---Furnishing of surety bond---Extension of time---Trial Court granted leave to defend with a condition to furnish surety bond till next date of hearing---Defendant, on the next date, filed application under S.148 C. P. C. for extension of time---Trial Court dismissed the application on the ground that it could not extend time and the suit was decreed---Validity---At the time when application was submitted by the defendant, the Trial Court had not passed a decree nor it had become functus officio---Trial Court could have extended the time under S.148, C.P. C. for furnishing the surety bond---Judgment and decree passed by the Trial Court was set aside and the case was remanded for decision afresh---Appeal was allowed accordingly.
2007 YLR 2430 O.XXXVII, R.3 & O.IX, R.13---Recovery suit based on pro note---Application for leave to defend suit was dismissed fo'r limitation and plaintiff was directed to produce original pro note on 24-5-2004---Civil revision against such dismissal was admitted for regular hearing by High Court and through a civil miscellaneous application moved by defendant further proceedings in the suit were stayed---Original pro note was produced before Trial Court and suit was decreed ex parte on 24-5-2004---Application for setting aside ex parte decree was dismissed---Validity---Application for leave to defend suit was clearly time barred and no explanation was given for delay---Application being not supported by an affidavit was rightly dismissed by Trial Court---Record revealed that impugned decree was not an ex partee decree as the application for leave to defend was dismissed on 1-4-2004 and suit was adjourned for 24-5-2004 only because Trial Court wanted to satisfy itself by examining the original pro note; same was produced and suit was accordingly dismissed, thus no case of ex parte decree was made out in circumstances---Application for leave to defend did not disclose a plausible defence, therefore, Trial Court was justified in disallowing the same.
2007 YLR 893
---O.XXXVII, Rr.2 & 3---Suit for recovery of amount---leave to defend suit---Suit was decreed in favour of plaintiff and defendant was directed to deposit decretal amount who deposited the same---Parties arrived at agreement during pendency of appeal which was disposed of in the terms that impugned judgment and decree, was set aside; leave to defend suit was granted subject to the condition that decretal amount deposited in the court would remain to be deposited by way of surety for payment of decretal amount; and said decretal amount would be invested by the Trial Court in profit bearing scheme of government to be disbursed along with profit to the party succeeding in the suit---Trial Court would take all steps to decide suit within specified period.
2007 MLD 1613
--O.XXXVII, Rr.2 & 3---Limitation Act (IX of 1908), S.5---Suit for recovery of amount on basis of Pro note---Application for leave to appear and defend suit---Delay, condonation of---Defendant, who was served on 16-2-2004 through summons, entered appearance before the court on next date of hearing which according to summons was 26-2-2004---Members of the Bar being on strike on said date, application for leave to appear and defend the suit was filed on 28-2-2004 along with application for condonation of delay of two days in filing said application under S.5 of Limitation Act, 1908---Validity--Copy of plaint was not delivered to defendant along with the summons at the time of service---Even on date fixed by the court, defendant was not in a position to have services of a counsel as the Members of Bar were on strike---Defendant immediately having obtained legal advice, filed application for leave to defend just two days thereafter---Order of the court also had indicated that defendant was not warned by the court on the date when he appeared in the court that same was the last date for him to file application for leave to appear and defend suit---Some lapse did occur on the part of defendant coupled with lapse on the part of Process Server, the Trial Court anal the absence of the lawyers on account of strike---There being some lapse on the part of defendant as well, delay could have been condoned, subject to payment of costs---Revision was allowed subject to payment of cost of Rs.3000---Application for leave to defend suit would be deemed to be pending and decided in accordance with law and on its own merits.
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