2012 PLP 2130 (YLR)

QAISER RASHID KHAN, J.

Aggrieved of the order dated 2-12-2010 of the learned Additional District Judge-III, D.I.Khan vide which the application of respondent/defendant for the grant of leave to appear and defend the suit was accepted, the appellant has preferred the instant appeal.

2. The compendium facts leading to the present appeal are that the appellant/ plaintiff filed a suit for the recovery of Rs.10,00,000 against the respondent/ defendant on the basis of pronote dated 14-4-2009 executed by the latter in favour of the appellant/plaintiff before the learned District Judge, D.I.Khan, which was in turn entrusted to learned Addl: District Judge-III, D.I.Khan for disposal. The respondent/ defendant appeared before the learned Addl: District Judge-III, D.I.Khan and submitted an application for the grant of leave to appear and defend the suit along with an application for condonation of delay. After obtaining replications from the appellant/ plaintiff and hearing arguments of the learned counsel for the parties, the learned Additional District Judge-III, D.I.Khan accepted the application of the respondent/defendant for the grant of leave to appear and defend the suit, hence the instant appeal.

3. Learned counsel for the appellant argued that the application for the grant of leave to appear and defend the suit filed by respondent was badly time barred and thus liable to be summarily dismissed. He contended that after putting appearance before the learned trial Court, the respondent absented himself and turned up before the learned trial Court after considerably long interval through the application for the grant of leave to appear arid defend the suit along with application for condonation of delay pleading his illness, without any documentary medical proof in support thereof, but still the learned trial Court allowed his application for the grant of leave to appear and defend the suit, which was a gross miscarriage of justice, patent illegality and thus liable to be set aside.

4. Conversely, learned counsel for the respondent raised the preliminary issue of maintainability viz the appeal itself. He argued that the instant appeal has been filed under section 96 of the C.P.C. against an interlocutory order which is not warranted under the law and thus the appeal is liable to be dismissed on this score alone.

5. Arguments heard and the available record perused.

6. Without going into merits of the impugned order so passed by learned Additional District Judge-III, D.I.Khan, the maintainability issue raised by the learned counsel for the respondent deserves the immediate attention of this court. Needless to mention that the order impugned herein is an interlocutory order passed by the learned Additional District Judge-III, D.I.Khan whereby the application filed by the respondent/defendant praying for the grant of leave to appear and defend the suit was allowed as the main suit is still pending adjudication before the said learned trial Court. Moreso, section 96, C.P.C. only provides for an appeal from the original decree. Section 96, C.P.C. reads as below:-- "

96. Appeal from original decree.

(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court. (2) An appeal may lie from an original decree passed ex parte. (3) No appeal shall lie from a decree passed by the Court with consent of parties."

7. Thus the present appeal filed against the interlocutory order dated 2-12-2010 is not maintainable. The same view has also been expressed in 1982 CLC 1625 Lahore and 1989 ALD 495 Karachi.

8. For the reasons stated above, the instant appeal being not maintainable before this Court, is dismissed with no order as to costs. H.B.T./59/P Appeal dismissed.