Qayum Khan vs Muhammad Yamin

2013 C L C 1650

[Peshawar]

Before Qaiser Rashid Khan, J

QAYYUM KHAN----Appellant

Versus

MUHAMMAD YAMIN----Respondent

Regular First Appeal No.148 of 2011, decided on 17th October, 2011.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 1 & 2---Proceedings under O.XXXVII, C.P.C.---Nature---Suit for recovery of money---Application of defendant for leave to defend was dismissed, and suit was decreed--- Validity---Grant of leave to defend in a suit filed under O.XXXVII, R.2, C.P.C. was not a right to be conferred upon a defendant in mechanical manner and in order to hold himself entitled to such a right, the defendant had to disclose a plausible defence which may in turn give rise to triable issues---Documentary evidence of plaintiff, in the present case, was not denied by the defendant in his application for leave to defend and pro note had been propely and duly stamped and witnessed---Nature of proceedings under O.XXXVII R.2, C.P.C. were summary in nature, if on the one hand the plaintiff was bound to present a proper instrument in the court, a corresponding duty was simultaneously cast on the defendant to present a proper application for leave to defend the suit with the aid and help of documentary evidence so as to make out a case for grant of leave to defend and not by merely raising perfunctory objections in relation to plaintiff's suit---If no defence worth the name was borne and from the facts laid down in the application for leave to defend, then such application had to be refused---Appeal was dismissed.

1999 SCMR 1845 and PLD 2002 Pesh. 1 rel.

Abdul Qayum Qureshi for Appellant.

Muhammad Ishaq Khan for Respondent.

Date of hearing: 17th October, 2011.

JUDGMENT

QAISER RASHID KHAN J.--- Through this judgment I propose to decide R.F.A No.148 of 2011, filed by Qayyum Khan, against the judgment/decree dated 3-5-2011, passed by learned Additional District Judge-VI, D.I. Khan.

2.Succinct facts of the instant appeal are that the respondent/ plaintiff filed a recovery suit under Order XXXVII, Rule 2 of C.P.C. for the recovery of Rs.5,50,000/-against the appellant/defendant.

3.The appellant/defendant was summoned by the trial Court, who appeared and submitted an application for leave to defend the suit. The learned trial Court after obtaining written reply from the respondent/ plaintiff to the application of appellant/defendant, heard the arguments of learned counsel for the parties, dismissed the application of the appellant for leave to defend the suit and decreed the suit of the respondent/plaintiff vide judgment/decree dated 3-5-2011, hence the instant R.F.A.

4.Arguments heard and record on file perused with the valuable assistance of the learned counsel of the parties.

5.Admittedly, the appellant has executed a pro note for sum of Rs.5,50,000/- in favour of respondent on 4-10-2010 duly signed by two witnesses, wherein the appellant has duly acknowledged the receipt of the said amount. In the application for leave to defend the suit filed by the appellant, no plausible defence has been offered, which in turn would give rise to triable issues entitling him to the grant of leave to defend the suit. In his application for leave to defend the suit, the appellant has given a brief account of the circumstances which prompted him to execute the letter of pro note in favour of the respondent. However, the same is not sufficient to entitle him to the grant of leave to defend the suit. lle has also mentioned some agreement with the respondent but no documentary evidence or for that matter the alleged agreement is available in this respect. Grant of leave to defend a suit filed under Order XXXVII, Rule 2 of C.P.C. is not a right to be conferred upon a defendant in a mechanical manner. In order to hold himself entitled for such right, the defendant has to disclose plausible defence which may in turn give rise to triable issues, which is lacking in the case of defendant, as far as his application is concerned. As against this, the respondent through his suit on the basis of pro note under Order XXXVII, Rule 2 of C.P.C. has come up with documentary proof the contents of which have per se not been denied in the application for grant of leave to defend the suit. The said pro note has been properly and duly stamped and has been witnessed by two witnesses. The nature of proceedings under Order XXXVII, Rule 2 of C.P.C. are summary in nature and if on the one hand, the respondent/plaintiff is bound to present proper instrument in the court, in the case in hand, the letter of pro note before the court for proceeding under the provision ibid, a corresponding duty is simultaneously cast on the appellant/defendant to present a proper application for leave to defend the suit with the aid and help of documentary evidence so as to make out a case for the grant of leave to defend the suit and not merely raising perfunctory

objections vis-a-vis, the suit of the plaintiff. If no defence worth the name is borne out from the facts laid down in the application for leave to defend the suit, then leave has to be refused. Reliance is placed on 1999 SCMR 1845 and PLD 2002 Peshawar 1.

6.For the reasons stated above, this appeal being bereft of any relief, is hereby dismissed with no order as to costs.

KMZ/78/P Appeal dismissed.