2007 PLP 1232 (CLD)

MAULVI ANWARUL HAQ, J.

For the purpose of this judgment we, need not to state the pleaded facts in detail, suffice it to say that on 4-7-2005, the respondents filed a suit against the appellant. Process in the manner prescribed was issued. On 12-9-2005, the appellant put in appearance and filed an application for grant of leave to appear and to defend the suit. This was accompanied by an application for condonation of delay. Reply was filed on 23-2-2006. Arguments in the PLA were partly heard on 17-5-2006 and 18-5-2006 and the case was adjourned to 26-5-2006. On this date, learned counsel for the plaintiff got recorded a statement on the record stating without any demur that the said application for leave to defend be accepted. Learned trial Court adjourned the case to 27-5-2006. It was observed that the application is prima facie, barred by time and he called upon the learned counsel to argue the point. On 3-6-2006, the application was dismissed and the suit was decreed as prayed for.

2. Mian Abdul Sattar, Advocate, learned counsel for the appellant, contends that in view of the said concession made by the learned counsel for the plaintiff/respondents, leave to defend the suit ought to have been granted, notwithstanding the fact that the application was barred by time. Mr. Iftikharullah Malik, Advocate,' learned counsel for the respondents, who also represented them before the learned trial Court, has very fairly stated that he had given the said conceding statement and that it was done with prior consent of the client. He, however, stated that it was within the domain of the learned trial Court to condone the delay in filing of the application as otherwise under section 3 of the Limitation Act, 1908, it was bound to dismiss the application having been filed beyond the prescribed period of limitation.

3. We have gone through the trial Court record. We have reproduced above, in some detail, the proceedings that took place before the learned trial Court. There is no dispute that the learned counsel for the plaintiff/respondents had made the said statement requesting the Court that the application may be accepted and leave to defend be granted. Learned trial Court finding the application to be prima facie barred by time, proceeded to dismiss the same as 'such. As noted by us above, prayer had been made for condonation of delay. One of the reasons given was that it has prima facie a case on merits and that some amount is still due from the respondents. It has already been noted by us above that the statement was made by the learned counsel at a stage when not only the respondents had an opportunity of examining the application for leave to defend as also the application for condonation of delay but they had filed reply and the matter had in fact been partly argued. It will, therefore, be assumed that the concession was made with awareness of the attending circumstances of the case. The said concession on the part of the plaintiffs in the said circumstances of the case by itself constitutes a sufficient cause within the meaning of section 5 of Limitation Act, 1908. We find ft to be a case of in-appropriate exercise of discretion on the part of the learned trial Court.

4. RFA accordingly is allowed. The impugned judgment and decree dated 3-6-2006, passed by the learned Judge, Banking Court-IV, Lahore, is set aside. In view of the concession of the plaintiffs which is still being reiterated, we also grant leave to defend the suit to the appellant. The suit shall be deemed to be pending in the Court of learned Judge, Banking Court IV, Lahore, before whom the parties shall appear on 26-4-2007.

5. No orders as to costs.

6. A copy of this judgment along with the records to be remitted to the said Court by the office immediately. S.A.K./M-195/L Appeal accepted.