2011 PLP 1024 (MLD)

IJAZ AHMAD, J.

The petitioner instituted a suit under Order XXXVII, C.P.C. for recovery of Rs.3,00,000 (three lacs) against the respondent based on negotiable instrument in the Court of learned Additional District Judge, Gujar Khan, on 2-2-2010. An ex parte decree was passed in his favour on 15-5-2010. The respondent made an application for setting aside the ex parte decree on 13-8-2010, it was allowed vide order 30-8-2010. The respondent made on application for leave to appear and defend on 7-9-2010. The application was allowed subject to furnishing personal bond for return of the suit money vide order dated 6-11-2010 which is being impugned through the instant petition.

2. It is contended by the learned counsel for the petitioner that an application for setting aside the ex parte decree should have been accompanied by an application for leave to defend and appear in the Court as is provided under Order XXXVII Rules 3 and 4 of C.P.C. that the application for setting aside the ex parte decree was made on 13-8-2010, whereas the application for leave to defend was made on 7-9-2010, which is barred by the prescribed period of limitation; that the application for leave to appear and defend the suit was not by an affidavit.

3. On the other hand, the learned counsel appearing on behalf of the respondent/defendant supports the orders dated 13-8-2010 and 7-9-2010 passed by the learned trial Court.

4. It is contended by the learned counsel for the petitioner that the application for setting aside the ex parte decree was accompanied by an affidavit; that the application for leave to appear and defend the suit disclosed the facts which necessitated the grant of leave to appear and defend the suit.

5. I have heard the learned counsel for the parties and have also gone through the record.

6. The respondent/defendant made an application for setting aside the ex parte decree on 13-8-2010. It was not accompanied by an application for leave to appear and defend the suit as is required under Order XXXVII Rules 3 and 4 of C.P.C. The respondent/defendant could not at all appear before the learned trial Court. The learned trial Court has 'illegally entertained the application and passed the impugned order. In my view, I am supported by the judgment cited as (2005 YLR 1521 (Lahore)) titled "Raja Zahid Hussain v. Director-General National Housing Authority, Islamabad and 2 others". The respondent had the knowledge of the institution of the suit at least on 13-8-2010, when he made an application for setting aside the ex paste decree. An application for leave to appear and defend if not simultaneously filed with the earlier application, should have been filed within 10 days of the service of notice or the knowledge as is required under Article 159 of Limitation Act, 1908. The instant application for leave to appear and defend the suit made on 7-9-2010, is hopelessly time barred. It should not have been dismissed. Even if this point had not been agitated; the Court had to take the notice. In my view, I am supported by the judgments cited as (PLD 1985 Supreme Court 153) titled "Hakim Muhammad Buta and another, v. Habib Ahmad and others" (1998 CLC 1133 (Lahore) titled "Malik Zafar Iqbal v. Messrs APCO through Managing Partner APCO, Bahawalpur". That the application for leave to defend the suit is not accompanied by an affidavit. In all other cases, it is an application which is a substantial document and an affidavit only lends support to it. To the contrary, an affidavit under Order XXXVII Rule 3, C.P.C. is the basic document which should disclose such facts as would make it incumbent on the plaintiff to prove the consideration. The application similarly sets the affidavit into motion. No application seeking leave to appear and defend the suit without an affidavit and that too embodying such facts that would make it incumbent on the plaintiff to prove the consideration, can be entertained and be followed by an order permitting leave to appear and defend. In my view I am supported by the judgments cited as (2005 YLR 1521 (Lahore)) titled "Raja Zahid Hussain v. Director General National Housing Authority, Islamabad and 2 others (1998 CLC 1183 (Lahore) titled "Malik Zafar Iqbal v. Messrs APCO through Managing Partner APCO, Bahawalpur".

7. I am obliged to hold that the application for setting aside the ex parte decree without an application for leave to appear and defend was not entertainable. The application for leave to defend was hit by law of limitation, the same application without an affidavit should have not been considered. I set aside the orders dated 13-8-2010, setting aside the ex parte decree dated 7-9-2010 granting leave to appear and defend the suit. Eventually on account of the respondent's failure to obtain the required leave, the allegations made in the plaint are deemed to have been admitted and the petitioner/plaintiff is entitled to a decree forthwith in accordance with the provisions of Order XXXVII Rules 2(2) C.P.C. Reliance is placed on (2009 SCMR 1101) titled "timer Khan v. Haji Musa Jan". This petition is accepted. The ex parte decree dated 15-5-2010, passed in favour of the petitioner is restored. A.R.K./I-19/L Petition accepted.