2005 PLP 1432 (CLC)

The petitioner who is defendant before the learned trial Court/District Judge, Bahawalpur has challenged the legality/validity of the order, dated 9-2-2005 whereby his application for setting aside the ex parte judgment and decree dated 5-10-2004 was dismissed by the learned District Judge on the ground that without first getting leave to appear and defend, such petition filed by the petitioner was not maintainable.

2. The facts relevant for the disposal of this civil revision are that Muhammad Abid respondent/plaintiff filed a suit for recovery of Rs.25,000 in summary jurisdiction on the basis of pro note and receipt, dated 18-8-2003 in the Court of learned District Judge, Bahawalpur. According to the order-sheet of the learned District Judge, the petitioner despite having been served did not turn up, resultantly the respondent's suit was decreed by the trial Court on 5-10-2004 against the petitioner. The petitioner thereafter, filed the application seeking setting aside of the said ex parte judgment and decree on 9-10-2004 but the learned District Judge after receiving reply of the said application, dismissed the same for the above reason. This order of the learned District Judge has now been assailed through this civil revision.

3. Learned counsel for the petitioner contends that the learned District Judge has acted illegally and with material irregularity by dismissing the said application without recording evidence and affording him opportunity of hearing.

4. Conversely the learned counsel appearing for the respondent has opposed the civil revision on the ground that in terms of Order XXXVII, rule 2, C.P.C. as the petitioner failed to move application for obtaining leave to appear and defend, hence, he could not ask for setting aside the ex parte decree and the learned District Judge therefore, was right in dismissing the application of the petitioner, holding the same as not maintainable.

5. I have considered the arguments of learned counsel for the parties and also perused the relevant record.

6. I am afraid how the learned District Judge/trial Court could dismiss the application filed by the petitioner/defendant for setting aside the ex parte decree for the reason that same was not accompanied by application for leave to appear and defend. The learned trial Court while holding so fell into legal error. Prima facie the said view of the learned District Judge is not sustainable in law for the simple reason that petition for leave to appear and defend is only required for the purposes of filing written statement in a suit and not a condition precedent for filing application seeking setting aside of the ex parte decree, because unless said decree is set aside, the petitioner/defendant cannot be considered as party before the Court, hence there was no question at all for seeking leave to appear and defend before or along with application filed for setting aside ex parte decree. The question whether the petitioner's default in non-appearance at the time of passing of the ex parte decree was intentional or due to some other reason could only be determined after recording of evidence. It is further astonishing to note that according to the reply filed by the respondent to the application for setting aside ex parte decree, the petitioner was served on 4-10-2004, meaning thereby that from 4-10-2004 to 14-10-2004 he could make application for permission to appear and defend the suit, whereas the learned District Judge without waiting for the said date i.e. 14-10-2004, proceeded to pass the ex parte decree on 5-10-2004, thus, pre-empting the petitioner's right to file said application, if the same was considered necessary along with application for setting aside the ex parte decree made on 9-10-2004. Since on 9-10-2004 the period of ten days for filing application for leave to appear and defend the suit had not yet expired, the learned District Judge could while admitting application for setting aside the ex parte decree, insist upon the petitioner to file application for leave and defend the suit as required under Order XXXVII, rule, 2, C.P.C. Since admittedly there was no suit pending before the trial Court on 9-10-2004 when the petitioner moved application for setting aside ex parte decree, hence, the learned District Judge/trial Court was not right in law by dismissing such application due to above mentioned defect, alone.

7. For what has been discussed above, I am satisfied that the order of the learned District Judge dismissing application of the petitioner for setting aside ex parte decree on the only ground of its non-maintainability having not been accompanied by application for leave to appear and defend, is not only without lawful authority but is also not based on proper interpretation of provisions of law as contained in Order XXXVII, rule 2, C.P.C. and thus, the said order is liable to be struck down on this ground alone. However, as there is dispute between the parties as to whether absence of the petitioner on 5-10-2004 was intentional or due to some other reason, hence, I deem it proper to direct the learned District Judge/trial Court to frame issue on this point and decide the petitioner's application for setting aside the ex parte decree after affording the parties opportunity of leading their respective evidence. Since the petitioner/defendant is not willing to furnish sufficient safeguard for the satisfaction of possible decree, hence, the respondent/plaintiff shall be at liberty to continue execution proceedings already launched by him, in respect of the decree passed in his favour on 5-10-2004. This civil revision is accordingly allowed and disposed of in the above terms. S.A.K./M-1093/L Revision accepted. ***