1999 PLP 2931 (MLD)

(c) Civil Procedure Code (V of 1908)

Ss. 115, 151 & O.XXXVII, Rr. 2 & 3

Suit for recovery of amount-- Petition for leave to defend suit

Dismissal

Participation in proceedings in Court

Defendant, whose petition for leave to defend suit was dismissed, had contended that he could be allowed to participate in proceedings in Court below irrespective of fact that he had not been allowed to defend suit

Trial Court had already made an observation in its order that counsel for defendant would be given an opportunity for hearing in connection with application moved under S.151, C.P.C. which was pending before Court

Defendant, as per said order of Trial Court, would have no right to cross-examine plaintiff's witness-- Since defendant was to be heard before disposal of application under S. 151, C.P.C. any order for participation of defendant in proceedings, would be extraneous at revision stage. Fida Ally v. Syed Iqbal Shabbir and another PLD 1960 (W.P.) Kar. 241 ref. Syed Aijaz Ahmad for Petitioner. The respondent/plaintiff filed a suit for the recovery of Rs.200,000 against the petitioner/defendant under Order. 37, C.P.C. The petitioner/defendant made an application for leave to defend the suit but the same was dismissed being time-barred and devoid of merit vide impugned order dated 16-10-1998 passed by the learned District Judge, Lahore.

2. In this revision, it is contended that the order passed by the learned District Judge, Lahore was without jurisdiction, palpably wrong and illegal in the eyes of law. In this regard, it is submitted that the petitioner had filed a petition for leave to appear on 15-9-1998 which was the date, fixed by the Court for notice to the petitioner/defendant. That petition was opposed on the ground that same was time-barred as it was nut moved within ten days after service upon the petitioner/defendant, that the petitioner/defendant failed to disclose the defence in the petition nor did he deny about the execution of the promissory note, hence it was prayed that the petition for leave to defend was without merit. The learned District Judge after considering the foregoing facts came to the conclusion that the petitioner was 'served on 1 1-8-1998 in the suit and was supposed to make a petition for leave to defend within 10 days of his service but he slept over the matter and filed the petition on 15-9-1998 which had become patently time-barred. Secondly, the petition itself was very sketchy because it did not disclose as to what defence was to be put in by the petitioner/defendant to resist the suit of the plaintiff/respondent nor the execution of promissory note was denied. The reason for filing the delayed application given in section 5 moved on 6-10-1998 was least convincing as a plea was taken that the petitioner was not aware of the law in respect of moving of petition for leave to defend. Even now, learned counsel for the petitioner. when confronted with the aforesaid situation, was unable to explain as to why the petition was not moved within 10 days of the service of the petitioner/defendant. The law requires that each day of delay should be explained but it was not so done by the petitioner/defendant to his petition seeking permission to defend the suit. In fact, no reason was given nor any plea was raised as to on what material or basis, the suit was to be defended. This type of sketchy application would not help the petitioner nor would be recognized by law so as to grant leave to defend the suit. The party seeking leave should come up with facts and figures to convince the Court that there was a prima facie case for defending the suit either by denying the promissory note or raising any bona fide plea as to why the suit should not be decreed. None of such plea was agitated in the petition which simply stated that the same was moved by the petitioner/defendant's counsel when the latter was engaged only that day and that some date be given for submitting reply of the suit. This is hardly a good ground for granting leave to defend the suit. Likewise, nothing was stated in the petition for condonation of delay as to how the delay occurred except the Civil Courts were closed in those days being the month of August. Needless to say for urgent matters, the Courts remain open but apart from that, the Courts having opened fur regular work w.e.f. 1-9-1998 the present petition for leave to defend was tiled on 15.9 1498 without showing any reason as to what prevented the petitioner/defendant to move the petition t after the vacations were over.

3. In the light of the above facts, the learned trial Court was justified to hold that was no good ground for allowing leave to the petitioner/defendant to defendant the suit. Likewise, the petition was rightly held to be time-barred. The Trial Court having acted in a judicial manner and without exercising the jurisdiction vested in it arbitrarily the impugned order does not suffer from any legal or factual defect so as to call for interference op the revisional jurisdiction of this Court.

4. Lastly, learned counsel for the petitioner contended that the petitioner/defendant be allowed to participate in the proceedings in the Court below irrespective of the fact that he had not been allowed to defend the suit. , Reliance was placed on Fida Ally v. Syed Iqbal Shabbir and another cited as PLD 1960 (W. P.) Karachi 241.

5. I have taken into consideration the above submissions and find that the learned trial Judge has already made an observation in his order dated 24-10-1998 that learned counsel for the defendant should be given an opportunity for hearing in connection with the application moved under section 151, C.P.C. which is pending before him. However, according to the aforesaid order of the learned Trial Judge, the petitioner/defendant shall have no right to cross-examine the plaintiff's witnesses. Since the petitioner is to be heard before the disposal of the application under section 151, C.P.C., therefore, any order for his participation in the proceedings would be extraneous at this stage:

6. In view of my above discussion, the revision petition being meritless is dismissed in limine. H.B.T./S-314/L Revision dismissed