2003 PLP 84 (CLD)

MIAN HAMID FAROOQ, J.‑‑‑Seemingly aggrieved by the judgment and decree dated 13‑11‑2001, whereby, the learned Additional District Judge, after the dismissal of the application, filed by the appellant, seeking leave to appear and defend the suit, proceeded to pass a decree for the recovery of Rs.4,28,000 together with costs and interest, the appellant/defendant has called in question the same, through the filing of the present appeal.

2. Brief facts, culminating to the filing of the present appeal, are that the respondent instituted a suit for the recovery of Rs.4,28,000 together with profit, against the appellant, under the provisions of Order XXXVIL rule 2, Civil Procedure Code, before the learned ‑District Judge. Pursuant to the issuance of summons, as prescribed under the law, the appellant was served in the suit on 21‑6‑2001, although he was represented before the learned Court. on 26‑6‑2001, yet he chose not to file an application for leave to appear and defend the suit within the stipulated period, however, it appears that the appellant was able to file the written statement, on 30‑6‑2001. Subsequently, the appellant, on 26‑9‑2001, filed an application for the grant of leave to appear and defend the suit, which was replied by the respondent, however, the learned Additional District Judge, on 13‑11‑2001, after finding that the appellant was served on 21‑6‑2001 and has filed the application for leave to appear and defend the suit on 26‑9‑2001, which is barred by time, proceeded to dismiss the said petition. Consequent, thereto, the learned trial Court, through a separate order, while holding that an application seeking leave to appear has been dismissed, passed a decree amounting to Rs.4,28,000 together with costs and interest, against the appellant, vide judgment and decree dated 13‑11‑2001, hence the present appeal.

3. The learned counsel for the appellant has contended that as the written statement was filed by the appellant, within a period of 10 days, therefore, the same could be treated as an application for leave to appear and defend the suit. He has further contended that after the passing of order dated 26‑6‑2001, the appellant was under a bona fide belief that the learned trial Court has itself extended the period for filing the application for leave to appear and defend the suit uptil 26‑9‑2001, thus, the requisite application, filed on 26‑9‑2001, could be considered to have been filed within time. Conversely the learned counsel for the respondent has supported the impugned judgment by submitting that the application for leave to appear and defend the suit was grossly barred by time and there was no application for the condonation of delay, thus, the learned trial Court has, rightly, passed the impugned judgment and decree, to which no exception could be taken by the appellant.

4. So far as the first contention of the learned counsel is concerned, under a summary procedure, as envisaged under Order XXXVII of the Code of Civil Procedure, a special procedure has been prescribed to be followed in suits covered under rule 2 of Order XXXVII, Civil Procedure Code. Order XXXVII, rule 2(2), Civil Procedure Code provides that the defendant shall not appear or defend the suit, unless, he obtains leave from a Judge to appear and defend the suit and in default of his obtaining such leave, .the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree. Order XXXVII, rule 3, Civil Procedure Code prescribes that the Court, upon affidavits, which disclose such facts as would make it incumbent on the holder to prove consideration, shall give leave to appear and defend the suit. Admittedly, the suit filed by the respondent was under the provisions of Order XXXVII, Civil Procedure Code and the appellant failed to file any such affidavit and/or application within a period of ten days, as provided tinder Order XXXVII, rule 3, Civil Procedure Code. Although the written statement was filed, yet that does not conform with the requirements of provisions of order XXXVII, rule 2(2) and Order XXXVII, rule 3, Civil Procedure Code. In view of the aforenoted mandatory provisions of law, we are of the view that as the written statement was not in consonance with the said provisions of law, thus, the same could not be treated as an application for leave to appear and defend the suit. Moreso, when subsequently, after the expiry of period of limitation, the appellant, himself consciously, filed such an application. If the appellant was under a belief that there is no legal requirement of filing such an application' and the written statement can be considered as a leave application, in that case, the appellant ought not to have filed such an application, even at a subsequent stage. The pleas, raised by the learned counsel, appear to be self destructive.

5. Coming to the next contention raised by the learned counsel, suffice it to say that the period for filing the application for leave to appear and defend the suit has statutorily been fixed, under Article 159 of Limitation Act, Which is 10 days from the date of service of the summons. It is settled law that the period/time which has statutorily been fixed, cannot be extended/condoned by the Court, unless "sufficient cause" for not preferring the appeal or application, within the parameters of section 5 of the Limitation Act, has been shown by way of filing an independent application. In the present case admittedly, the appellant chose not to file any application under section 5 of the Limitation Act, seeking condonation of delay, in preferring the application for leave to appear and defend the suit, after the expiry of a period of three months, as against a period of 10 days.

6. Even otherwise upon a query raised by this Court Khawaja Muhammad Laeeq, the sole proprietor of Waqas Traders, the appellant, has categorically and unequivocally acknowledged and admitted before this Court that although the suit amount is payable by the appellant to the respondent, yet now he is not in a position to liquidate his liability, as his entire business has been ruined.

7. In the above perspective and for the reasons stated above, we find that the appeal is devoid of any merits, thus, we are constrained to dismiss the same with costs throughout. H.B.T./W‑67/L Appeal dismissed.