2017 PLP 164 (CLCN)

IBAD-UR-REHMAN LODHI, J.

With the concurrence of learned counsel for the parties, the hearing of this civil revision petition is being treated as pacca hearing.

2. A learned Additional District Judge at Rawalpindi, vide order dated 12.12.2014, proceeded to grant leave to appear and defend the suit in favour of the respondent herein, in a suit filed against the said respondent by the present petitioner, under the provisions of Order XXXVII, rules 1 and 2, C.P.C. Such leave granting order has been called in question by the present petitioner on two grounds; one on the touchstone of limitation and the other one the grant of unconditional leave. With regard to the first submission, learned counsel for the petitioner has contended that, admittedly, the defendant/respondent in the suit, received notice issued by the learned trial court in suit under Order XXXVII, C.P.C. on 16.09.2014, and the petition for leave to appear and defend the suit was filed on 26.09.2014; therefore, according to the calculation of the learned counsel for the petitioner, it was 11th day of the service effected upon the defendant, when the leave petition was filed, and thus the limitation of ten days, provided under Article 159 of The Limitation Act, 1908, for filing the petition was not strictly observed. Further, learned counsel for the petitioner has contended that, if at all the learned trial court reached to the conclusion that, it was a case of grant of leave, even then some condition must be attached with the leave granting order. In support of his contentions, learned counsel for the petitioner has placed reliance on Mian Muhammad Amjad Amin v. Rana Bashir Ahmad (2004 MLD 988) and Emirate Bank International v. Dost Muhammad Cotton Mills (1993 MLD 54).

3. Responding to such contentions, learned counsel for the respondent has contended that, no doubt, the summons issued by the learned trial court in the name of the respondent, were received by him on 16.09.2014 and notwithstanding such fact, the petition for leave to appear and defend the suit filed on 26.09.2014, was within such prescribed limitation. He has placed reliance on section 9 of The General Clauses Act, 1897 and view arrived at by Hon'ble Supreme Court of Pakistan in case titled Messrs Tribal Friends Co. v. Province of Balochistan (2002 SCMR 1903).

4. For leave to appear and defend a suit under summary procedure referred to in Order XXXVII, C.P.C., ten days limitation has been provided. Column-3 of The First Schedule of The Limitation Act, 1908, is meant for the time "from" which period begins to run and against Article 159, Column-3 provides such time from the point of time, when the summons is served. In view of the provisions of section 9 of The General Clauses Act, 1897, in any Central Act or Regulation made after the commencement of The General Clauses Act, it shall be sufficient for the purpose of excluding the first in a series of days or any other period of time, to use the word "from", and, for the purpose of including the last in a series of days or any other period of time, to use the word "to".

5. The Hon'ble Supreme Court of Pakistan in Messrs Tribal Friends' case (supra), while interpreting such provision of The General Clauses Act, 1897, has held that, while computing time by use of word "from", the first day is excluded, whereas, by the use of word "to", the last day is excluded. In the same judgment, the effect of section 9 of The General Clauses Act was extended even for computing the period of limitation as fixed by even any judgment, decree or order. Even in both the matters relied upon by the learned counsel for the petitioner, the principle provided for calculating the limitation by using the word "from" was followed. The respondent was, thus, entitled to get benefit of interpretation of section 9 of The General Clauses Act and, when in the case in hand, the limitation on the touchstone of section 9 of the Act is counted, the first day i.e. 16.09.2014 is to be excluded from the limitation and starting from 17.09.2014 and, therefore, filing of petition for leave to appear and defend the suit on 26.09.2014, will be considered as within the prescribed time of limitation of ten days. The objection, as such, raised by the learned counsel for the petitioner, treating the petition for leave to appear and defend the suit, as being barred by time, is not maintainable.

6. So far as the contention of learned counsel for the petitioner that, leave granting order must be attached with some condition is concerned, again the same is not supported by any law, for, it is not obligatory for the Court granting leave to a defendant in a summary suit to attach any condition, rather it is a discretionary relief and discretion has been exercised in a proper and judicial manner. Even if once a defendant would become successful in establishing a prima facie case, he is entitled to have an opportunity to defend himself in some proper and unfettered manner. The condition, if required to be attached with such leave granting order is, in fact, an attempt to pollute such leave granting order with unnecessary conditions, putting a restraint on the mind of the defendant, who deserves to be provided a level playing field.

7. Thus, in view of above, the learned trial court has committed no illegality or irregularity and the impugned order, which suffers from no flaw, calls for no interference by this Court in its revisional jurisdiction. Resultantly, this civil revision petition, having no force, is dismissed. WA/I-23/L Revision dismissed.