1996 PLP 1167 (MLD)

‑‑‑‑O.XXXVII, Rr. 3 & 4‑‑‑Suit for recovery of amount on basis of negotiable instrument ‑‑‑Defendant having been served in jail had filed an application for leave to appear and defend suit within 10 days of service effected on him and as the District Judge was on leave same was filed before Additional District Judge ‑‑‑District Judge did not consider his plea and came to conclusion that application in question had not been filed within specified time and that it had not been filed before proper forum‑‑‑Orders of District Judge were patently wrong and he had failed to exercise his jurisdiction vested in him in the circumstances of case‑‑‑Decree was thus, set aside in terms of O.XXXVII, R.4, C.P.C. and case was remanded with direction for recommencing proceedings by bringing into consideration defendant's application to appear and defend suit which he had filed within time. Ejaz Afzal Khan for Petitioner. S. Waqar Ahmad Shah for Respondent. Date of hearing: 6th March, 1996. This is an appeal subsequently converted into a revision filed by Muhammad Bashir defendant against whom a decree for the recovery of Rs.1,00,000 was granted by the learned District Judge, Mansehra on 13‑9‑1994 in favour of Muhammad Yousaf plaintiff under Order 37, C.P.C.

2. The decree, dated 13‑9‑1994 was granted on one and the only ground that application for leave to defend had not been filed by the defendant within 10 days of service of summons. It is to be recalled that the defendant was served in jail on 20‑7‑1994 ‑and was otherwise required to have had filed petition for leave to defend on or before 30‑7‑1994. On the very date of decree the defendant moved a petition under Order 37, Rule 4, C.P.C. for getting the decree set aside (mistakenly considering it to be an ex parte decree). A clear plea was taken in such application that the defendant had in fact filed a petition for leave to defend within 10 days of this service but as the learned District Judge was away on leave, it was submitted to the learned Additional District Judge, Mansehra. The trial Court rejected this petition as well on the ground that the application dated 25‑7‑1994 had not been filed before the proper forum.

3. It seems that the learned District Judge, Mansehra, on both the occasions, was only in a hurry to dispose of the matters and not to do justice. On the first occasion he did not even ask the defendant if he had filed a petition for leave to defend and on the second occasion he totally forgot that under his own orders passed with reference to sections 21 and 22 of the Civil Courts Ordinance, 1962, he had already delegated his powers to the Additional District Judge at Mansehra, who was fully authorised and empowered to receive all such documents in his behalf. The powers exercised by such dalegatee are not confined to any normal or summary powers exercised by the District Judge but are related to the powers exercised by a District Judge simpliciter. All powers exercised under Order 37, C.P.C. are the powers of a District Judge and do fall under the Code of Civil Procedure, 1908 and thus can with' all convenience be delegated with reference to sections 21 and 22 of the Civil Courts Ordinance:

4. Both the orders of the learned District Judge are patently wrong and hey has failed to exercise the 'jurisdiction' vested in him because, in the circumstances of the case, the decree essentially required to be set aside under Order 37, Rule 4, C.P.C.

5. The petition is accepted, the orders dated 13‑9‑1994 as well as 13‑11‑1994 of the learned District Judge, Mansehra are set aside and the case is remanded back to the Court with the direction to recommence the proceedings by bringing into consideration the petition dated 25‑7‑1994 for leave to defend filed by the defendant. Parties to appear before the learned District Judge, Mansehra on 20‑3‑1996 where the proceedings in suit shall resume from consideration of petition dated 25‑7‑1994. A.A./1907/P??????????????????????????????????????????????????????????????????????????????????????????????????????????????? Case remanded