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(a) Civil Procedure Code (V of 1908)‑

‑‑‑ Os. XX & XXXVII, R. 2(2)‑Suit for recovery of money on basis of pronote--‑ Application of defendant for leave to appear and defend suit not receiving judicious consideration of trial Judge who disposed it of with mere observation that he had not given any justification for grant of leave‑Trial Judge losing sight not merely of fact that defendant's application was supported by his affidavit and he was not entitled, at that stage, to produce any evidence to prove his defence but also of factor that a reason for calling upon plaintiff to prove his case stood provided by the very figure of sum sued for ‑ Conclusion drawn by trial Judge, from absence of prima facie evidence looked for by him, to the effect that there was no merit in defendant's application, held, did not follow as a rational inference because absence of prima facie evidence could not, by itself, have led to a finding about absence of merit even in application ‑ Refusal of leave to defend suit, could not; by itself, have in law resulted in outright passing of a decree against defendant and such refusal could not be equated with an admission of suit to result in relieving plaintiff of his normal obligation to prove his case‑Suit of plaintiff‑respondent, could not in circumstances be decreed in absence of any evidence adduced to support his claim ‑ Decree so passed by Trial Court did not have support from record‑Judgment passed in case also falling far short of requirements of O. XX, C. P. C. 'with regard to its contents, was not sustainable‑..Judgment and decree set aside and

suit remitted to trial Court for trial in accordance with law Sum in suit standing deposited in Court, defendant also granted leave to defend suit without any other condition.

(b) National Registration Act (LVI of 1973)‑

‑‑ Ss. 11(d) & 12‑Penal Code (XLV of 1860), Ss. 193 & 204 Criminal Procedure Code (V of 1898), Ss. 195(1)(b), 476 & 476‑A Civil Procedure Code (V of 1908), O. XXXVII, R. 2(2)‑Trial Court while dealing with an application for grant of leave to defend moved by defendant in suit for recovery of money on basis of pronote, referring to disfiguration of National Identity Card, as was discovered by him, and coming to conclusion that defendant had, apart from committing offences of destroying evidence in his Court and also under National Registration Act, 1973, tried even to play fraud upon the Court and directing that a criminal case be registered against him in concerned police station for said offences Such observations and directions of Trial Court be speaking of his desire to vindicate and therein he erred on more than one count ---- alleged offence would have fallen either under S. 193, P. P. C. or S. 204, P. P. C., its maximum punishment being two years, it would not be a cognizable offence so that a case would not have been required to be registered by Police ‑‑ Provisions of S. 12 of National Registration Act, 1973, barring cognizance of such an offence being taken except upon a complaint in writing made by Registrar‑General or a Gazetted Officer‑Act of Trial Court in taking it upon himself to make a complaint in matter to Police, held, was beyond comprehension and such unbriddled exercise of power could not be easily countenanced and it was deplorable that he acted not only illegally but also in haste without even acquainting himself of law applicable to situation‑Conduct of trial Court in circum stances constituted gross abuse of process of Court and his order could not be sustained.

(c) Civil Procedure Code (V of 1908)‑

‑‑ O. XXXVII, R. 2(2)‑Interpretation‑Failure of defendant to put in appearance or his omission to apply for grant of leave to defend suit and refusal of leave by Court‑Distinction emphasised Suit shall be straightway decreed where there is failure of appearance by defendant or omission to apply for grant of leave‑Where, however, there is refusal to grant leave by the Court, the plaintiff would not be relieved of his normal obligation to prove his case, which a plaintiff would continue to remain under a duty to discharge even upon his defendant having been disabled from defending the suit on account, of refusal of leave and suit of plaintiff would not be decreed in absence of any evidence adduced to support. his claim‑Held, there was no provision for the refusal of grant of leave being equated with an admission of a suit.

Muhammad Akbar for Appellant.

M. M. A. Pirzada for Respondent.

Date of hearing: 5th November, 1986.

,JUDGMENT

A suit filed by the respondent under Order XXXVII of the C. P. C. for recovery of Rs. 14,130 on the bans

of a pronote claimed to have been executed by the appellant for the sum allegedly advanced to him as loan; was sought to be defended by him on the basis of an application filed on 1‑4‑1985 for grant of requisite leave, upon setting aside the order passed on 31‑3‑1985 to place him ex parse, on the pleas that his address in the suit was wrong and that in fact no amount was ever lent to him by the plaintiff and that the sum in suit represented the balance out standing to the plaintiff as the price of his cotton supplied in the course of business. Learned trial Judie, Syed Akhtar Naqi Naqvi, Additional District Judge, Bahawalpur, dismissed the application by the order dated 8‑5‑1985 to simultaneously decree the suit against the defendant on a realization that, on an inquiry made from him, he had lied about his inability to sign and to support this assertion he had even defaced his National Identity Card by super‑imposing a clumsy impression of thumb, whereabout learned Judge even required a criminal case to be registered against him by the police on the basis of a complaint to be drawn up for this purpose. The defendant has come up to this Court to challenge the decree thus passed against him.

It is manifest that the defendant's application for grant of leave has not received judicious consideration of the learned trial Judge who has disposed it of with the mere observation that he had not given any justification for the grant of leave to defend the suit. In the earlier part of his judgment, learned Additional District Judge dealt with the plea of the defendant, raised at his own initiative, that he could not sign and after referring to the disfiguration of his National Identity Card, as was discovered by him, he came to the conclusion that therein the defendant bad, apart from committing the offence of destroying evidence in his Court and also under the National Registration Act, 1973, tried even to play fraud upon his Court.

3. In such a treatment of the case, rather than judicially considering the matter, learned trial Judge appears to have been more obsessed with the idea of an attempt made by the defendant to defraud him, inasmuch as he has directed that a criminal case be got registered against him in the concerned Police Station for "destroying the evidence in this Court" and "interpolating the document issued by the Central Govern ment". This bespeaks of his desire to vindicate and therein he has erred on more than one count. He not only improperly set out to inquire into the execution of the pronote sued upon, which actually was a function to be performed by the concerned counsel, without even the stage for it having reached; but he also side‑tracked the plea requiring his judicial consideration by stretching too far the ancillary issue raised by himself. Therein be acted in oblivion also of the fact that the relevant National Identity Card had still not become evidence' in the suit and muchless had it been destroyed' and, in his Court'. Moreover, if his above-cited observations were to be taken to be correct in their entirety; even then the alleged offence would, depending on the circumstances, have either fallen under section 193 of the P. P. C. or come within the purview of section 204, thereof: If it fell under the former section, then clause (b) of subsection (1) of section 195 of the Cr. P. C. got attracted to, in turn, attract the provisions of sections 476 and 476‑A thereof and if it came under section 204 of the P. P. C. then its maximum punishment being two years, it would not be a cognizable offence so that in neither event may a case have been required to be registered by the Police. As regards the offence under the National Registration Act, LVI of 1973, the act mentioned by the learned Judge would fall under clause (d) of section 11 thereof which provides for a punishment not exceeding fifty rupees and, in default of payment of fine, a simple imprisonment for a period not exceeding fifteen days and section 12 thereof bars the cognizance of such an offence from being taken except upon a complaint in writing made by the Registrar-General or a Gazetted Officer authorised by him. It is beyond comprehension as to how then did the learned Judge take it upon himself to make a complaint in the matter and that too, to the Police The unbriddled exercise of power, even if one may have vested in the learned Additional District Judge, as has been exhibited in this case, cannot be easily countenanced. He had himself raised the issue and whereas he was expected to have acted calmly and with restraint, it is deplorable that he has acted not only illegally but also in haste, without even acquainting himself of the law applicable to the situation.' The foregoing constitutes a gross abuse of process of Court and his order; on the point cannot be sustained.

4. Turning now to his disposal of the matter in his hand, he has observed that the defendant has not produced any prima facie evidence to justify his claim, about the outstanding being the price of cotton and' has held:

"I, therefore, find no merits in this application, hence, the same is rejected and the result of this order would be that since leave to defend at the suit has not been granted to the defendant, the suit is liable to be decreed in favour of the plaintiff and against the defendant. I, therefore. rejecting the application filed by the defendant, decree the suit with costs in favour of the plaintiff."

Therein, learned trial Judge lost sight not merely of the fact that the defendant's application was supported by his affidavit and he was not entitled to, at that stage, produce any evidence to prove his defence but also of the factor that a reason for calling upon the plaintiff to prove his case stood provided by the very figure of the sum sued for, namely Rs. 14,130 which rather than being a sum loaned in cash, appeared more to be an amount of some determined liability. Even his conclusion, drawn from the absence of prima facie evidence looked for by him, to the effect that there was no merit in his application, does not follow as a rational inference because absence of prima facie evidence could not, by itself, have led to a finding about absence of merit even in the application. He was called upon to consider the question simply of grant of leave to defend the suit so that he could not have prejudged the case and since the law does not provide for only a true and unshakable defence being taken, therefore, even the undoubtable inability of the defendant to ultimately prove his defence could not have provided a valid reason for refusal of leave.

Furthermore, refusal of leave, to defend the suit could not, by itself, have in law resulted in the outright passing of a decree against the defendant. Sub-rule (2) of Rule 2 of order XXXVII of the C. P. C., so far as it is relevant hereto, reads as under :

"(2) in default of his obtaining such leave or of his appearance and defence in pursuance thereof, the allegation, in the plaint shall be deemed to be admitted, and the plaintiff shall be entitled to a decree."

It is clear that thereunder, the eventuality of straightaway decree in, the suit can fellow either upon the failure of the defendant to put fill appearance or upon his omission to apply for grant of leave and defend the suit in pursuance thereof but not from the refusal by the Court to grant the leave, claimed by a defendant. There is no provision for the refusal of grant of leave being equated with an admission of the suit to result in relieving the plaintiff of his normal obligation to prove his case, which a plaintiff would undoutably continue to remain under a duty to discharge, even upon his defendant having been disabled from defending the suit on account of refusal of leave and hence, suit of the respondent could not be decreed in absence of any evidence adduced to support his claim. The decree so passed by the learned Additional District Judge does not have support from the record.

Moreover, Order XXXVII of the C. P. C. does not abrogate the provisions of order XX, thereof with regard to the contents of judgments and the one impugned in this case falls far short of those requirements and, on any view. it is not sustainable.

In result, this appeal is allowed by setting aside the judgment and decree dated 8-5-1985 and the suit is remitted to the learned District Judge, Bahawalpur, for trial in accordance with law, either by himself or by an Additional District Judge other than Syed Akhtar Naqi Naqvi, who had dealt with this suit earlier. A copy of this judgment will, however, be sent to him as well, for future guidance.

The sum in suit stands deposited in cash in this Court in pursuance of the order dated 5-7-1986, therefore, the defendant is also granted leave E to defend the suit without any other condition. The sum so deposited will abide by the final result of the suit.

With a view to achieving expeditious disposal of the suit, parties have been directed to put in appearance before the learned District Judge, Bahawalpur on 29-11-1986. No order as to costs.

S. Q. Appeal allowed.

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