PLJ 2023 Lahore (Note) 22
Civil Procedure Code, 1908 (V of 1908)--
----O.XXXVII R. 4--Suit for recovery--Decreed--Promissory note--Appellant was failed to produce evidence--Appellant’s right to producing of evidence was close--Appellant was cross-examined witnesses of respondent--Application for setting aside decree--Dismissed--Lame excuses of appellant--Special circumstances--Execution of promissory note was admitted by appellant--Validity of order--Maintainability--Presumption of correctness--Appellant while playing hide and seek only concocted story for getting to set-aside judgment and decree--Grounds urged by appellant is merely lame excuses which are neither sufficient nor plausible and did not make out a case of special circumstances which required to set-aside impugned judgment and decree--Appellant while admitting execution of promissory note and receipt, took a stance that promissory note was executed as a surety and he will not divorce sister of plaintiff but failed to prove it by producing any kind of evidence--Appellant did not file application under Section 12(2), C.P.C. for setting aside impugned judgment and decree on ground of fraud and misrepresentation rather filed under Order XXXVII Rule 4, C.P.C--Appellant did not file regular first appeal against impugned judgment and decree--Appeal dismissed.
[Para 9 & 12] A, B, E & F
Civil Procedure Code, 1908 (V of 1908)--
----O.XX R. 5--Mandate of law--Mandate of law is that to discuss all material and controverted points in judgment--If a judgment discussed all points raised, fulfills requirement of law even though it may not have discussed each issue separately. [Para 9] C
2011 SCMR 1162 ref.
Civil Procedure Code, 1908 (V of 1908)--
----O.XXXVII R. 4--Special circumstances--Provisions of order XXXVII Rule 4, C.P.C., on plan reading, required a defendant to establish special circumstances and more particularly to demonstrate facts constituting a plausible defence in order to enable Court to set-aside exparte judgment and decree. [Para 11] D
PLD 1993 Lahore 244 at 248 & 2006 SCMR 631 ref.
Ch. Imran Masood, Advocate for Appellant.
Mian Tariq Hussain Advocate for Respondent.
Date of hearing: 2.7.2021.
PLJ 2023 Lahore (Note) 22
Present: Ahmad Nadeem Arshad, J.
ZULFIQAR ALI--Appellant
versus
AHMAD NAWAZ--Respondent
F.A.O. No. 32850 of 2021, heard on 2.7.2021.
Judgment
Through this First Appeal against Order, the appellant calls in question the validity of order dated 07.05.2021, whereby, his application under Order XXXVII Rule 4, C.P.C. was dismissed and also challenged the validity of judgment and decree dated 11.01.2021 whereby the suit for recover of Rs. 10,00,000/- on the basis of pronote was decreed.
2. Brief history of the case is that the respondent/plaintiff instituted a suit for recovery of Rs. 10,00,000/- on the basis of promissor note and receipt dated 03.01.2018 against the appellant/defendant before the Court of learned Additional District Judge, Peer Mahal on 25.09.2018. The special summons issued in the name of the appellant/respondent and in response to that summons, the appellant submitted power of attorney and moved an application for leave to appear and defend the suit. The respondent submitted contesting written reply. On 29.01.2019, the learned trial Court in the light of the conceding statement of the respondent/plaintiff accepted the application for leave to appear and defend the suit subject to surety bond of worth Rs. 10,00,000/-. The appellant submitted surety bond and written statement. The learned trial Court keeping in view the divergent pleadings of the parties framed issues on 18.07.2019 and directed the respondent/plaintiff to produce evidence. The respondent/ plaintiff produced three witnesses as PW-1 to PW-3 including marginal witnesses of the receipt on 21.10.2020 and produced soribe of the pronote and receipt as PW-4. In documentary evidence, he produced promissory note and receipt as Exh.P-1 copy of Nikahnama as mark-DA and closed his oral as well as documentary evidence. Thereafter, the learned trial Court directed the appellant/defendant to produce evidence but he failed to produce his evidence inspite of availing four opportunities, therefore, his right to produce defence evidence wasclosed vide order dated 16.11.2020 and fixed the case for final arguments. After hearing both the learned counsel for the parties decreed the suit vide judgment and decree dated 11.01.2021. It is also evident from the perusal of record that appellant’s counsel cross-examined the witnesses of the respondent/plaintiff and remained present during the proceedings and his presence was also marked on the day when the right to produce evidence of the appellant was closed and at the time of final arguments.
3. Learned counsel for the appellant submits that the impugned order dated 07.05.2021, judgment and decree dated 11.01.2021 are against facts and law and result of mis-reading and non-reading of record and liable to be set-aside; that the learned trial Court failed to comply with the provision of Section 2(2) read with Order XX Rule 5, CPC; that the appellant engaged Rao Nouman Adil Advocate as his counsel who submitted application for leave to appear and defend the suit on his behalf. Thereafter, power of attorney of Rao Nouman Adil Advocate was withdrawn on 19.04.2019 through statement of Mr. Talib Hussain Jaffri, Advocate. Notice parvi it was issued and new power of attorney on behalf of the appellant was filed while replacing Rao Noman Adil Advocate, as appellant’s trust upon him was shaken but he signed the power of attorney with Talib Hussain Jaffri, Advocate without permission and knowledge of the appellant; that the parties compromised each other and respondent/plaintiff agreed to withdrew the suit but he did not withdrew the suit and with the connivance of Rao Nouman Adil Advocate, got decreed the suit; that intention of Rule 4 of Order XXXVII, C.P.C. is to prevent injustice; that sufficient material is available on record to rebut the claim of the respondent/plaintiff but the learned trial Court failed to consider the same while passing the impugned judgment and decree; that there exists special circumstances for setting-aside the exparte decree; that if the impugned order, judgment and decree are not set-aside, the appellant will suffer irreparable loss. Reliance is placed upon “Ghulam Muhammad versus Abdul Qadeer and others” (1989 MLD 124), 1990 ALD 623, “Nazam Din and others versus Halal Din and others” (1992 MLD 510), “Maj. Pervez Shakoor and 4 others versus Muhammad Usman” (1991 MLD 536), “Ali Muhammad versus Muhammad Hayat and v. othrers’ (1982 SCMR 816), “Mst Tahira Taj versus Karm Shah” (2011 CLC 950).
4. Conversely, learned counsel appearing on behalf of respondent/plaintiff submits that the appellant appeared before the learned trial Court, submitted written statement and after framing of issues he cross-examined the witnesses of the respondent/plaintiff; that after recording of evidence, the learned trial Court directed the appellant to produce his evidence but he failed to produce the same inspite of availing sufficient opportunities; that the learned trial Court decreed the suit of the respondent/plaintiff keeping in view unrebutted evidence; that the suit was decreed on the basis of promissory note as the appellant/defendant failed to rebut it; that there exists no special circumstances which can be based for setting-aside the judgment and decree.
5. I have heard the learned counsel for the parties and perused the record minutely.
6. From perusal of record it appeared from the order sheet that on 24.10.2018 power of attorney of Rao Noman Adil, Advocate on behalf of the appellant/defendant was filed and the said Advocate along with his power of attorney, an application for leave to appear and defend the suit had also filed. But perusal of said application it appears that said application was filed through Mr. Talib Hussain Jaffri, Advocate High Court, as his signature and stamp is available on the said application. The order sheet as well as application clearly suggested that Talib Hussain Jaffri, Advocate and Rao Nouman Adil, Advocate had jointly been engaged on behalf of the appellant/ defendant. The respondent/plaintiff submitted contesting written reply to the application. Thereafter, on the conceding statement, application for leave to appear and defend the suit was conditionally accepted vide order dated 29.01.2019 and the learned trial Court directed the appellant to file written statement as well as surety bond. But on 14.02.2019, 28.02.2019, 13.03.2019, 20.03.2019, 28.03.2019, 10.04.2019, 18.04.2019, and 19.04.2019 the appellant/defendant failed to submit the surety bond as well as written statement. On 19.04.2019 appellant’s counsel Mr. Talib Hussain Jafri, Advocate appeared and stated that he has no contact with his client and wants to withdraw his power of attorney. On his reqxiest, permission to withdraw his power of attorney was accorded. The learned trial Court issued notice Parvi to the appellant/defendant for 06.05.2019, 28.05.2019 and 19.06.2019. On 19.06.2019 Mr. Talib Hussain Jaffri, Advocate again submitted his power of attorney on behalf of the appellant/ defendant and also submitted surety bond on his behalf and requested for an adjournment for submission of written statement. The case was adjourned for 02.07.2019. On 02.07.2019, 11.07.2019 the appellant failed to submit his written statement. On 18.07.2019 written statement on behalf of the appellant was filed. From perusal of the same, it appears that the same was filed on behalf of appellant/defendant through his counsel Mr. Talib Hussain Jaffri, Advocate and Rao Noman Adil, Advocate High Court. Meaning thereby, the power of attorney submitted on behalf of the appellant was again jointly filed by both the learned counsel.
7. The learned trial Court framed the issues on 18.07.2019 and directed the respondent/plaintiff to produce his evidence. The respondent’s evidence was completed on 03.11.2020, and lengthy cross examination was conducted by the appellant’s counsel on the witnesses of the plaintiff, thereafter, the learned trial Court directed the appellant to produce his entire evidence on 06.11.2020 but he failed to produce his evidence on 06.11.2020, 09.11.2020, 11.11.2020 and 16.11.2020 and vide order dated 16.11.2020 learned trial Court closed his right to produce evidence and fixed the case for final arguments. Thereafter, the case was adjourned to 19.11.2020, 25.11.2020, 26.11.2020, 30.11.2020, 3.12.2020, 7.12.2020, 16.12.2020, 21.12.2020, 23.12.2020, 04.01.2021, 05.01.2021 and on all the dates presence of the learned counsel for the parties were marked on the order sheet. The learned trial Court after hearing the arguments of the learned counsel for the parties decreed the suit vide judgment and decree dated 11.01.2021. The arguments on behalf of the appellant was advanced by his learned counsel. In the decree sheet presence of both the learned counsel was marked by learned trial Court.
8. Against the impugned judgment and decree dated 11.01.2021, the appellant moved an application under Order XXXVII Rule 4, C.P.C. for setting aside the decree before the learned trial Court on 07.05.2021 after lapse of about four months.
9. In this background, it is clearly established on record that the appellant while playing hide and seek only concocted story for getting to set-aside the judgment and decree. He himself engaged both the counsel namely Rao Nouman Adil and Talib Hussain Jaffri Advocates, who filed power of attorney on his behalf and also filed application for leave to appear and defend the suit. Thereafter, in order to linger on the case, they withdrew their power of attorney on 19.04.2019 and then again submitted power of attorney on 19.06.2019. Both the advocates put their signatures on the written statement which was filed on 18.07.2019 and appellant’s counsel also cross-examined the respondent’s witnesses. Therefore, the appellant’s contention that he did not engage Rao Nouman Adil, Advocate as his counsel, is against record and has no weight and force. The grounds urged by the appellant is merely lame excuses which are neither sufficient nor plausible and did not make out a case of special circumstances which required to set-aside the impugned judgment and decree. Otherwise the judgment and decree is passed on merits after full-fledge trial and adopting due procedure of law.
10. The second contention of the appellant/defendant that the learned trial Court failed to give issue-wise findings is also against the fact. The learned trial Court framed Issue No. 1 regarding main controversy and after discussing the entire evidence available on record decided the suit in favour of respondent/plaintiff. The onus to prove Issues No. 2 to 4 was placed upon the appellant/defendant but he failed to adduce any kind of evidence in support of these issues, therefore, there is no need to discuss these issues. The mandate of law is that to discuss all the material and controverted points in the judgment. If a judgment discussed all the points raised, fulfills the requirement of law even though it may not have discussed each issue separately. For better Appreciation Order XX Rule 5, C.P.C. is reproduced as under:
“5. Court to state its decision on each issue.--In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit.”
In this context, reliance can be placed upon the judgment of august Supreme Court of Pakistan reported as “Qadir Bakhsh (Deceased) through L.Rs. versus Allah Dewaya and another (2011 SCMR 1162).
“The wisdom behind the Rule 5, Order XX, C.P.C., is that the trial Court and the first appellate Court should record findings on all the points and non-recording of finding on each and every issue would not be fatal to the judgment on the strength of the Order XX, Rule 5, C.P.C.”
11. The provisions of Order XXXVII Rule 4, C.P.C., on plan reading, required a defendant to establish special circumstances and more particularly to demonstrate facts constituting a plausible defence in order to enable the Court to set-aside the exparte judgment and decree. The Order XXXVII Rule 4, C.P.C. reads as under:-
“4. Power to set aside decree. — After decree the Court may, under special circumstances, set aside the decree, and if necessary stay or set aside execution, and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the Court so to do, and on such terms as the Court thinks fit.”
The terms ‘special circumstances’ has not been defined in C.P.C., however, according to the judgment in case “Muhammad Yousaf versus Abdul Majeed” (PLD 1993 Lahore 244 at 248) it has been held that ‘the word special circumstance’ occurring in Rule 4 would not connote ‘ordinary circumstances’ or event of routine out would indicate circumstances which are uncommon, rare and exceptional. The Hon’ble Supreme Court of Pakistan while dealing with this proposition in case titled as “Shahid Pervez alias Shahid Hameed versus Muhammad Ahmad Amin” (2006 SCMR 631) held as under:
“The Order XXXVII is a special provision having special procedure prescribed under Order XXXVII, C.P.C. Order XXXVII, Rule 4, C.P.C. provided a remedy to the petitioner/defendant to file an application for setting aside ex parte decree. The Legislature in its wisdom used the word ‘special circumstances’ in Order XXXVII, Rule 4, C.P.C. is higher in degree than the words ‘sufficient cause’ and ‘good cause’ shown under the various rules of Order IX, C.P.C. The excuse shown by the petitioner’s/defendant’s counsel in his affidavit that he was unable to appear before the Court in order to see his ailing relation could not be considered as a ‘special circumstance’ whereupon an application under Order XXXVII, Rule 4, C.P.C. could be allowed. Term ‘special’ in Webster’s New International Dictionary (2nd Edition) is defined as distinguished by some unusual quality uncommon, noteworthy, extraordinary, as a special occasion, especially distinguished by superior excellence, importance, power, or the like. In the shorter Oxford English Dictionary historical principle term ‘special’ is defined as of such a kind as to exceed or excel in some way that which is usual or common, exceptional in character quality or decree. The Concise Oxford English Dictionary says that ‘special’ means of a particular kind, peculiar in general. Therefore, under Rule 4, C.P.C. the petitioner/defendant is obliged to explain the ‘special circumstances’ which prevented him from appearing in the Court to seek leave to appear and defend the suit within time or other ‘special circumstances’ which may authorize the Court to set aside the decree passed by it. Rule 4, C.P.C. is intended to prevent in justice. In the present case, no special circumstances have been shown for entitling the petitioner/defendant to claim benefit of Rule 4, C.P.C. Facts in the case depict it as a clear case of sheer negligence in the conduct of the defence”.
12. The respondent/plaintiff filed suit for recovery of
Rs. 10,00,000/- (ten lac) on the basis of promissory note. In support of his contention, he himself appeared as PW-1 and got examined PW-2 & PW-3, marginal witnesses of promissory note and receipt (Exh.P-1). He also got examined scriber of the promissory note and receipt as PW-4. The respondent’s witnesses were cross-examined but nothing favourable could be brought on record. The appellant/defendant while admitting the execution of the promissory note and receipt, took a stance that the promissory note was executed as a surety that he will not divorce the sister of the plaintiff but failed to prove it by producing any kind of evidence. He himself slipped away/absented from the trial and his right to produce evidence was closed by the learned trial Court and nothing was available on the record to rebut the stance of the respondent, therefore, the learned trial Court has rightly passed the impugned judgment and decree and order. Learned counsel for the appellant has failed to point out any illegality or material irregularity in the findings recorded by the learned trial Court. The judgment and decree passed by learned trial Court did not suffer from any misreading and non-reading of record/evidence. Learned counsel for the appellant/defendant remained present before the proceedings of the learned trial Court. He cross-examined the respondent’s witnesses and was remained present on 16.11.2020 when the appellant’s right to produce evidence was closed. He also remained present on the next 11 dates when the case was being adjourned for final arguments as his presence was marked by the trial Court. There is no cavil with the proposition that presumption of correctness is attached to the judicial proceedings. His presence was also marked on the judgment and decree sheet. There is no evidence available on the record which rebut this presumption. The appellant did not initiate any proceeding at any forum against his counsel. The appellant filed application before the learned trial Court for setting aside judgment and decree dated 11.01.2021 which was rightly dismissed by the learned trial Court. The appellant did not file the application under Section 12(2), C.P.C. for setting aside the impugned judgment and decree on the ground of fraud and misrepresentation rather filed under Order XXXVII Rule 4, C.P.C. The appellant did not file regular first appeal against the impugned judgment and decree. The instant appeal is first appeal against order and not regular first appeal.
13. The facts of case laws relied upon by the learned counsel for appellant/defendant is totally different from the facts of this case, therefore, are of no help to the appellant/defendant.
14. The instant appeal is misconceived, baseless, not maintainable, without any force, therefore, dismissed accordingly with no order as to costs.
(Y.A.) Appeal dismissed
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