2009 PLP 2217 (YLR)

SYED ZULFIQAR ALI BOKHARI, J.

Through this revision petition the petitioners have assailed the order dated 16-2-2009 passed by learned Additional District Judge, Sahiwal through which he dismissed the application of the petitioners/defendants for leave to appear and defend the suit.

2. Brief facts of the case are that the respondent/plaintiff had filed a suit under order XXXVII C.P.C. for recovery of Rs.41,76,000 against the petitioners/ defendants on the basis of 18 Defence Saving Certificates purchased by the plaintiff from defendant No.3. Defendants were summoned through ordinary modes as well as through registered post A.D. Defendant No.3 after service appeared before the trial Court on 15-9-2008 but he filed application for leave to appear and defend the suit on 26-11-2008 when defendants Nos. 1 and 2 filed the application on 23-1-2009. The applications of the defendants were opposed by the plaintiff and the same were dismissed by the trial Court vide order dated 16-2-2009 which is impugned in this civil revision.

3. Learned counsel for the petitioners contends that the impugned order is nullity in the eyes of law. The defendant No.3 had filed an application on 26-11-2008 when the defendant Nos.1 and 2 filed the same on 23-1-2009 soon after getting knowledge of pendency of civil suit. He submitted that the defendants Nos.1 and 2 were never served prior to that date so the application for leave to defend the suit filed by defendants Nos.1 and 2 was within time from the date of knowledge of the defendants Nos. 1 and 2 and was liable to be allowed when the same also disclosed plausible defence.

4. Learned counsel for the plaintiff/ respondent has vehemently opposed the contentions of the petitioner/ defendants. He submits that limitation for filing of application for leave to defend the suit is provided under Article 159 of Limitation Act which is 10 days from service of the defendants. Defendant No.3 was served with summons and attended the Court on 15-9-2008. He filed application for leave to defend the suit on 26-11-2008 while defendants Nos.1 and 2 filed the same on 23-1-2009 without proper affidavit. He states that when defendant No.3 attended the Court on 15-9-2009, the service of defendants Nos. 1 and 2 will be presumed to be effected being higher officers of the defendant No.3 but they filed an application for leave to defend the suit on 23-1-2009. He submits that the defendants were served through summons as well as through registered post A.D. in accordance with the procedure laid down under Order V, Rule 30 C.P.C. They filed time barred petition for leave to appear without application under section 5 of Limitation Act through which they were bound to explain the delay of each and every day in filing above said application. He has relied on Muhammad Zubair v. Haji Muhammad Tufail and another (2003 SCMR 1334) and Khan Muhammad v. Mst. Zainab Bibi through legal heirs and others (2000 SCMR 1227). Learned counsel further contends that the affidavit filed by the petitioners/defendants Nos.1 and 2 was of General Manager Pakistan Post Office through Tariq Muhammad Iqbal. Advocate Supreme Court Sahiwal and was signed by Deputy Post Master General defendant No.2. The General Manager Pakistan Post Office is stranger to the suit as he was not party to it. He also submits that the affidavit was not attested in accordance with the provisions of section 15 of the Oath Act as well as High Court Rules and Orders. He has relied on Sarfraz Ahmad Khan v. District Judge, Multan and two others (2003 CLC 44).

5. I have heard the learned counsel for the parties and perused the record of the case.

6. The defendants No.3 who is necessary party had appeared in the Court on 15-9-2008 but filed application for leave to appear and defend the suit on 26-11-2008 with the delay of two months 11 days when the defendants Nos. 1 and 2 filed application for leave to appear and defend the suit on 23-1-2009 beyond the statutory period provided in Article 159 of the Limitation Act. As the applications filed by the petitioners were barred by limitation, the application for condonation of delay was to be filed through which delay of each and every day was to be explained by the defendants. The affidavit submitted along with that application filed by defendants No.1 & 2 was also not of the defendants. Without proper affidavit, application filed by said defendants for leave to appear and defend the suit cannot be considered as validly filed under Order XXXV.II Rule 3 C.P.C. Defendant No.3 who is subordinate to defendants Nos.1 and 2 attended the Court on 15-9-2008 and service on defendant No.3 shall be considered the service of defendants Nos.1 and 2 as provisions of Order V Rule 30 C.P.C. shall be applicable to the facts of this case. The applications for leave to appear and defend the suit were badly time barred and the same could not be entertained without application for condonation of delay.

6. For what has been discussed above, no illegality or material irregularity has been committed by the Court below while passing the impugned order. I find no merits in this civil revision. The same is therefore dismissed in limine. H.B.T./P-18/L Petition dismissed.