2004 PLP 988 (MLD)

Through the filing of the present appeal, the appellant/defendant has called in question judgment end decree dated 30‑10‑2002, whereby the learned Additional District Judge passed an ex parte decree for the recovery of Rs.4,17,500, against the appellant.

2. Facts leading to the filing of the present appeal are that the respondent filed a suit for recovery of Rs.4,17,500 against the appellant, under the summary procedure provided under Order XXXVII, C.P.C., before the learned Additional District Judge, on the basis of a pro note, statedly, executed by the appellant. Pursuant to the receipt of summons, as provided under the law, the appellant filed an application under Order XXVII, Rule 3, C.P.C., seeking leave to appear and defend the suit alongwith an application under section 5 of the Limitation Act. The learned trial Court, after finding that pro note, prima facie, bears the signature and thumb‑impression of the appellant, he has failed to put any plausible defence, that the application is barred by time and no sufficient cause for condonation of delay has been made out, rejected both the applications, vide order dated 4‑6‑2002. Thereafter, the learned trial Court, after recording ex parte evidence, proceeded to pass a decree for the recovery of Rs.4,17,500 with costs against the appellant, vide judgment and decree dated 30‑10‑2002, hence the present appeal.

3. The learned counsel for the appellant has contended that although the appellant was personally served on 20‑3‑2002 yet as the copy of the plaint was delivered to him on 10‑4‑2002, therefore, the application for leave to appear and defend the suit, filed on 16‑4‑2002, was within time. He has added that as the basic order dated 4‑6‑2002 is not sustainable in law, as such, the subsequent judgment and decree, which is based upon earlier order, is violative of law, hence also not sustainable.

4. Upon the examination of the record of the case, we find that the learned ‑trial Court issued the requisite summons to the appellant, which was received by him personally on 20‑3‑2002. Report of the process server is also to the same effect that the appellant had received the summons on 20‑3‑2002. Upon the examination of the summons, we find that it has specifically been incorporated in the summons that a copy of the plaint is annexed with it. Furthermore, the appellant did not raise any objection, at the time of the receipt of the summons, that it does not accompany the copy of the plaint.

5. Admittedly, as noted above, the appellant was served on 20‑3‑2002, but he filed an application seeking leave to appear and defend the suit alongwith an application under section 5 of the Limitation Act on 16‑4‑2002. Article 159 of the Limitation Act, provides that an application for leave to appear and defend the suit, under summary procedure referred to under Order XXXVII, C.P.C., is to be filed within a period of 10 days from the date when the summons were served. It has nowhere been provided in the said Article that the period of limitation, for filing such an application, would commence from the date when copy of the plaint is delivered to the defendant. As noted above, the summons were served on 20‑3‑2002 and therefore, the appellant could have filed an application seeking leave to appear and defend the suit within a period of 10 days from 20‑3‑2002 and thus, the last date for filing such an application comes to 30‑3‑2002, while the application was filed on 16‑4‑2002, therefore, the said application was patently barred by time. It has been held in Emirate Bank International v. Dost Muhammad Cotton Mills 1993 MLD 54, that if the defendants failed to file an application for leave to appear and defend the suit within the prescribed period of 10 days, then they are under a duty to explain each day's delay in filing their application after the expiry of the period of limitation.

6. In this perspective, now it would be seen as to whether the appellant has been able to explain each day's delay for not filing the leave application within the prescribed period. We have also examined the contents of the application under section 5 of the Limitation Act and find that the principal ground, seriously, urged by the appellant in his application is that as he was seriously ill and unable to move from 8‑3‑2002 uptil 9‑4‑2002 on account of various diseases, therefore, he could not file the requisite application within stipulated time. It has specifically been stated in the said application that the delay, if any, in filing the application for leave to appear and defend the suit was not intentional but on account of serious illness of the appellant. Upon the examination of the said application, we do not find that the appellant has ever raised the plea that on account of non‑furnishing of the copy of the plaint, he could not file leave application within time, although it has feebly been stated that the copy of the plaint was delivered to the counsel of the petitioner on 8‑4‑2002. It would be appropriate to reproduce paras Nos.2 and 3 of the application under section 5 of the Limitation Act, which are as under:‑‑ 2. "That the petitioner/defendant was retired from the post of Deputy Registrar Federal Shariat Court of Pakistan. The petitioner/defendant remained seriously ill and was unable to move from bed with effect from 8‑3‑2002 till 9‑4‑2002 on account of heart trouble paralysis shoulder, blood pressure, sugar etc., therefore, could not file the application earlier". 3. "That the delay, if any, in filing the petition for leave to appear and to defend the suit was not intentional, but on account of the serious illness of the applicant. It is further submitted that the copy of the plaint was delivered to the counsel of the petitioner on 8‑4‑2002." Although the appellant has taken the ground of his alleged illness in his application seeking condonation of delay, yet the same has not been urged by the learned counsel before us. Be that as it may, as regards the illness of the appellant, he failed to bring any material on record to show that in fact he was indisposed and was not in a fit state of health to file the leave application within the stipulated period. He failed to explain the delay of each day in filing the leave application. Admittedly, the application under Order XXXVII, rule 2, C.P.C. was filed after the expiry of the period of limitation, statutorily fixed under the Limitation Act and no sufficient cause for the condonation of delay, within the parameters of law, was made out, thus, we feel that the learned trial Court rightly dismissed both the applications.

7. After the dismissal of both the applications, the learned trial Court recorded the ex parte evidence wherein, original pro note was produced and exhibited as Exh.P.1, inasmuch as the witnesses of the pro note were also produced, to which there was no rebuttal. Even otherwise, under Order XXXVII, rule 2(2), C.P.C. if defendant failed to obtain leave to appear and defend the suit, the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a F decree. If any case is needed Messrs Ahmad Autos and another v. Allied Bank of Pakistan Limited PLD 1990 SC 497 can be referred.

8. In the above perspective, we have examined the order dated 4‑6‑2002 and the judgment dated 30‑10‑2002 and find that they are completely in consonance with the law on the subject and do not call for any interference by this Court, thus, the same are maintained.

9. Upshot of the above discussion is that the present appeal is devoid of any merits, thus, the same is dismissed with no order as to costs. S.A.K./M‑1718/L Appeal dismissed.