1991 PLP 1112 (CLC)

This application has been moved by the defendants Nos.2 and 3 for setting aside the decree passed on 26‑2‑1990. The application has been made under Order 9 Rule 13 read with Section 151, C.P.C. and under Order 37 Rule 4, C.P.C. The grounds mentioned in the affidavit riled in support of this application are that the learned counsel had fallen ill on 15‑1‑1990 when the matter was Fixed before the Additional Registrar and, therefore, he could not attend. It is further mentioned in affidavit that the notice cost could not be paid under the bona Fide mistake of the learned counsel for the said defendants as he was under the impression that the Plaintiff had already received the copy of the application and was aware of the same. It is further stated in the affidavit that because of the disturbances, law and order situation and non‑availability of the transport he could not attend on 11‑2‑1990 and that the matter was fixed for hearing of the application of the defendants moved under Order 37 Rule 3, C.P.C. I have heard Mr. Azad Bin Haider, learned counsel for the applicants/defendants Nos.2 and 3. 1 have also heard Mr. I.M. Patel learned counsel for the plaintiff. The perusal of the diary and order sheet in the suit will show that the suit was riled in Court on 12‑6‑1989 and the present defendants Nos.2 and 3 were served and filed application being C.M.A. No.6898/89 on 11‑10‑1989 while the defendant No.1 moved such application alongwith another application under Section 5 of the Limitation Act on 21‑10‑1989 being C.M.A. No.7115/89 and 7116/89. The diary on 1‑11‑1989, contains an order of the Additional Registrar, to, the effect that the notices were not issued as the costs were not paid since 23‑10‑1989. It was further ordered that the costs to be paid within one week for 11‑12‑1989. By this date also no costs were paid and again one week's time was allowed for payment of costs. The matter then came up before the Additional Registrar on 15‑1‑1990 when the above application (C.M.A. No.6898/89) was struck off under Rule 128 of Sindh Chief Court Rules (O.S.). The matter was then placed in Court on 4‑2‑1990 when the learned counsel for the plaintiff and the defendants Nos.2 and 3 present applicants were present and none was present for the defendant No.l. The applications of defendant No.1, were, therefore, dismissed for non‑prosecution. The order sheet further shows that the Advocate for the present defendants Nos.2 and 3 made statement that his application was pending which was not fixed for hearing in Court on that date and, therefore, it was ordered that if any application is moved by any party which is lying in the office, the same may be put up on 11 2‑1990 to which date the suit was adjourned for final orders. However, again on 11‑2‑1990 the counsel for the present applicants was absent and the suit reserved for announcement of judgment. The Judgment was ultimately passed on 26‑2‑1990. From the above facts it is seen that the application moved by the present defendants was dismissed for non‑prosecution as notice costs were not paid by them in spite of opportunity given to them. The ground mentioned in the affidavit in support of the present application cannot be said to be special circumstances for setting aside the decree. On the contrary the application for leave to defend was dismissed on account of negligence on the part of the applicant. It may be observed that the provisions of Order 9 Rule 13 and Section 151, C.P.C. would not be applicable to the present case but it is the provisions of Order 37 Rule 4, C.P.C. which will be applicable. The said provision reads as under:‑ "

4. Power ‑to set aside decree.‑‑After decree the Court may, under special circumstances, set aside the decree, and if necessary stay or set aside execution, and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the Court so to do, and on such terms as the Court thinks fit." It may be observed that in order to have the decree satisfied it is incumbent on the applicant to show some special circumstances which are rare, exceptional and not common grounds. The burden lies heavily on the defendants/applicants to show that such circumstances had arisen which besides being good cause or sufficient cause were of special nature due to which he was unable to appear or comply with the requirements which in this case was non‑payment of notice costs. Reliance may be placed on the case of Allied Bank of Pakistan Ltd. v. V.C. Khilnani and 2 others (P L D 1984 Kar. 127). From the above discussion, I find no force in the present application which is accordingly dismissed with no order as to costs. H.B.T./M‑1359/K Application dismissed.