Khan and Company Ltd. Vs. Presiding Judge of the District Court and others

Case No: Writ Petition No. 3869 of 2000

Judge: Md. Gholam Rabbani,

Court: High Court Division,,

Advocate: Ansarul Huque,,

Citation: 54 DLR (2002) 121

Case Year: 2002

Appellant: Khan and Company Ltd

Respondent: Presiding Judge of the District Court and others

Subject: Property Law,

Delivery Date: 2000-08-21

Khan and Company Ltd. Vs. Presiding Judge of the District Court and others
54 DLR (2002) 121

 
Supreme Court
High Court Division
(Special Original Jurisdiction)
 
Present:
Md. Golam Rabbani J
Nazmun Ara Sultana J
 
Khan and Company Ltd.
………….. Petitioner.
Vs.
Presiding Judge of the District Court and others
…………..Respondents.

 
Judgment
August 21, 2000.
 
Code of Civil Procedure (V of 1908)
Order XXXVII rule 3
District Court Judge can only grant a defendant leave to appear and defend the suit if the defendant raises a triable issue.
 
Lawyers Involved:
Ansarul Huque, Advocate—Appears in person.
Not represented— the Respondents.
 
Writ Petition No. 3869 of 2000.
 
JUDGMENT
 
Md. Gholam Rabbani J:Writ Petitioner Ms Khan and Company Ltd. represented by  Ansarul Huque filed 7 (seven) Suits being Title Suit Nos. 7, 9, 10, 11, 13, 14 and 15 all of 1998 in the District Court of Dhaka claiming money on bill of exchange under Order XXXVII CPC against the National Bank Ltd. Summons of the suits were served upon the said defendant-bank on 19-8-98. Under the law a defendant in such a suit is to obtain leave to appear and defend within 10 days from the service of summons upon him on 28th and 29th August were respectively Friday and Saturday and, as such, the defendant filed applications in each of the suits on 3-8-89 this time under Order XXXVII rule 3 CPC praying for leave to enter appearance and to defend the suits.
 
2. By the similar orders passed on 1-11-98 in all the suits learned Judge allowed each of the applications of the defendant allowing him to appear and defend the suit on merit. This writ petition is against all the said orders dated 1-11-98 passed in the aforesaid all the title suits.
 
3. We have heard the writ petitioner in person. Perused the writ petition and the annexures there as well as record of all the said title suits.
 
4. No one appears to oppose the Rule.
 
5. Paragraph No. 4 of the application filed by the defendant in all the suits is the only ground upon which the defendant prayed to enter appearance and defend the suits. Paragraph 4 of the application runs as follows:
 
“That the defendant submits that there is a defence to the suit on merit, as such, it is reasonable that the defendant should be allowed to appear and defend the suit.”
 
6. We find that on the basis of submission in the applications as quoted above learned Judge acted without any lawful authority in granting the leave to the defendant to enter appearance and to defend the aforesaid suits. Object and purpose of Order XXXVII CPC is to assist the expeditious disposal of commercial causes. District Court Judge can only grant a defendant leave to appear and defend the suit if the defendant raises a triable issue, but we find that the paragraph 4 as quoted above did not contain any triable issue. Leave to defend should be granted if there is an arguable defence and a case is put forward which a court will have to enquire into and come to a decision. But if the alleged defence is illusory, sham or bogus one, then leave to defend should be refused. However, where the learned Judge finds himself in a genuine doubt as to whether the defence is genuine or not, he can grant leave only on certain conditions.
 
7. In the result, this Rule is made absolute without costs. The impugned orders dated 1-11-98 as aforesaid passed in all the aforesaid Title Suit Nos. 7, 9, 10, 11, 13, 14 and 15 all of 1998 pending in the District Court of Dhaka are hereby declared to have been passed without any lawful authority and are of no legal effect. The District Court is directed to dispose of all the aforesaid suits from the stage as were on 1-11-98 strictly in accordance with the provision of Order XXXVII CPC as quickly as possible.
 
Send down the LC records at once.
 
Ed.