2006 PLP 631 (SCMR)

CH. IJAZ AHMAD, J.

The above captioned petitions for leave to appeal are being disposed of by one consolidated order having identical question of law and facts.

2. Brief facts out of which the present petitions arise are that the respondent filed three suits for recovery of Rs.3,00,000 each on the basis of pro notes and receipts dated 15-8-2002 in the Court of' Additional District Judge Chishtian on 9-4-2003. Petitioner filed applications for leave to appeal to appear' and defend the suit in all the three suits before the trial Court which was granted vide orders, dated 3-9-2003. Petitioner also filed written statements in the said suits. Out of the pleading of the parties, the trial Court framed the following issues:-- (1) Whether the defendant had executed the pro note in question in favour of the plaintiff? OPP (2) Whether the plaintiff is entitled to recover the money I question from the defendant on the basis of impugned pro note and receipt? OPP (3) Relief.

3. The cases were fixed before the trial Court on 3-1-2004 but neither the petitioner nor his counsel had appeared before the trial Court. The learned trial Court passed the ex parte order and also decreed the suits of the respondent ex parte vide judgments and decrees dated 3-1-2004. Petitioner being aggrieved filed three applications for setting aside the ex parte decrees under Order XXXVII, rule 4 before the trial Court on 11-5-2004. The respondent contested the applications. The said applications were fixed before the trial Court on 10-7-2004 on which date neither the petitioner nor his counsel entered appearance before the trial Court. The trial Court dismissed the applications in default vide orders dated 10-7-2004. Petitioner being aggrieved filed applications for setting aside order dated 10-7-2004 on 2-2-2005 before the trial Court. The learned trial Court dismissed the applications vide orders dated 27-4-2005. Petitioner being aggrieved filed Civil Revisions Petitions Nos.315 of 2005, 316 of 2005 and 317 of 2005 before the High Court which were dismissed by the learned High Court vide orders, dated 19-5-2005. Hence, these petitions.

4. Learned counsel of the petitioner submits that learned Courts below non-suited the petitioner on technical grounds and the cases were not decided against him on merits. He further urges that learned Courts below erred in law not to peruse the contents of pro notes and receipts in question. In case the Courts below scrutinized the documents in question then result would have been different. He further urges that petitioner could not appear before the trial Court on 3-1-2004 on account of illness. Petitioner had attached medical certificate but all the Courts below did not consider this aspect of the case at all. He further urges that petitioner's counsel also could not appear before the trial Court on 3-1-2004 on account of an avoidable circumstances and to this extent he had tendered his affidavit but all the Courts below failed to consider this aspect of the matter. He further urges that judgments of the Courts below are in violation of principle of natural justice and passed on surmises and conjunctures as alleged pro notes are result of mechanical process of the three amounts of the same value while same were result of fraud and forgery. He further urges that petitioner is still ill and is not in a position to appear before this Court on account of illness. The petitioner has been penalized by the misdeeds of the respondent and on account of his Advocate who had not diligently pursued the matters on his behalf before the Courts below. He sums up his arguments that petitioner is a very poor person, therefore, in the interest of justice and fair play, the Courts below be directed to decide the cases on merits.

5. We have given our due consideration to the contention of learned counsel of the petitioner and perused the record. It is better and appropriate to reproduce the basic facts in chronological order to resolve the controversy between the parties: (i) Suits were filed by the respondent on.9-4-2003. (ii) Petitioner and his counsel failed to appear before the trial Court on 3-1-2004. The trial Court after examination the statements of P.W.1 Muhammad Ahmad Amen, P.W.2 Muhammad Jamil and P.W.3 Qaisar Yousaf and Exh.P.1 pro notes and receipts Exh.P.2, passed the ex parte decree on merits against the petitioner vide judgments and decrees dated 3-1-2004. (iii) Petitioner filed application of setting aside the ex parte decree under Order XXXVII, rule 4 before the trial Court on 11-5-2004 which was dismissed for non-prosecution on 10-7-2004. (iv) The petitioner had also filed application for setting aside order dated 10-7-2004 before the trial Court on 2-2-2005 which was dismissed by the trial Court vide orders dated 27-4-2005.

6. In case the aforesaid facts are put in juxta-position, then it is crystal clear that petitioner had filed application for setting aside ex parte decree after about four months of the passing of the decree. Meaning thereby petitioner and his counsel did not vigilant to pursue and find out what was happened on 3-1-2004 before the trial Court. The medical certificate submitted by the petitioner was rightly ignored and discarded by the learned High Court with cogent reasons as medical certificate was procured by the petitioner from private practitioner. This certificate does not show that petitioner was in such serious condition that he could not call his counsel to his house for consultation nor could he speak to him on telephone. Some person from the family could have been sent to inquire from the Advocate about the progress of the case. The learned Courts below were not satisfied that the reasons stated by the petitioner and in his affidavit in support of application under section 5 of the Limitation Act. As mentioned above suit was decreed on 3-1-2004 and application under Order XXXVII, rule 4, C.P.C. had been filed on 11-5-2004 which was dismissed due to non-prosecution on 10-7-2004. Article 164 of the Limitation Act provides 30 days time to the petitioner/defendant to file application for setting aside ex parte decree. These 30 days started from the date of the decree in the instant case B because petitioner/defendant had participated in the proceedings before the trial Court. This Court has interpreted Order XXXVII, rule 3 of C.P.C. in Abdul Karim Jaffarani's case 1984 SCMR

568. The relevant observation is as follows: "In view of the legislative history of these provisions, the overall object envisaged by the Legislature was to provide for expeditious disposal of litigation involving commercial transactions of a particular nature by a summary procedure so that the defendant does not have the means open to exploitation in the ordinary procedure for trial of suits to prolong the litigation and prevent the plaintiff from obtaining an earlier decision by raising untenable and frivolous defences." "The Order XXXVII is a special provision having special procedure prescribed under Order XXXVII, C.P.C. Order XXXVII, rule 4, C.P.C. provides a remedy to the petitioner/ defendant to file an application for setting aside ex parte decree. The Legislature in its wisdom used the word special circumstances in Order XXXVII, rule 4, C.P.C. is higher in decree than the words `sufficient cause' and `good cause' shown under the various rules of Order IX, C.P.C. The excuse shown by the petitioner's/defendant's. counsel in his affidavit that he was unable to appear before the Court in order to see his ailing relation could not be considered as a `special circumstance' whereupon an application under Order XXXVII, rule 4, C.P.C. could be allowed. Term `special' in Webster's New International Dictionary (2nd Edition) is defined as distinguished by some unusual quality, uncommon, noteworthy, extraordinary, as a special occasion, especially distinguished by superior excellence, importance, power, or the like. In the shorter Oxford English Dictionary on historical principles term `special' is defined as of such a kind as to exceed or excel in some way that which is usual or common, exceptional in character quality or decree. The Concise Oxford English Dictionary says that `special' means of a particular kind, peculiar in general. Therefore, under rule 4, C.P.C., the petitioner/defendant is obliged to explain the 'special circumstances' which prevented him from appearing in the Court to seek leave to appear and defend the suit within time or other 'special circumstances' which may authorize the Court to set aside the decree already passed by it. Rule 4, C.P.C. is intended to. prevent in justice. In the present case, no special circumstances have been shown for entitling the petitioner/ defendant to claim benefit of rule 4, C.P.C. Facts in the case depict it as a clear case of sheer negligence in the conduct of the defence."

7. It is a settled principle of law that valuable right accrues to the other side by lapse of time and each day's delay has to be satisfactorily explained. It was argued that valuable rights of the petitioner is involved C but this does not furnish a proper ground for condonation of delay in civil matters. Plea for condonation of delay on the ground of poverty is also not valid ground as law laid down by this Court in Hakim Abdul Rehman's case 1970 SCMR

582. It is also a settled maxim that law of equity favours those who are vigilant. The conduct of the petitioner clearly shows that he was not serious to pursue the matter before the Courts below.

8. All the Tribunals below have given concurrent findings of fact against the petitioner. This Court cannot interfere in the concurrent findings of fact arrived at by the Courts below while exercising power under Article 185(3) of the Constitution as the law laid down by this Court in Muhammad Azim's case 1984 SCMR 1501.

9. In view of what has been discussed above, petitioner has failed to point out any infirmity or illegality in the impugned orders and judgments of the Courts below. Resultantly, the petitions having no merit, are dismissed. Leave refused. M.H./S-7/SC?????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.