Bashir Khan Vs Inam Ullah

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Judgment Sheet

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TUDICIAL DEPARTMENT

IIFA No.363-P12022

Bashir Khan..vs.. Inamullah

JUDGMENT

Date ofhearing. ... ......... r.....1 5.4.2025............

Appellant(s) by:- Mr. Hassan Zeb Rahim, Advocate.

Respondent(s) by: Ms. Palwasha Hadi Gul, Advocate. **{<*t

WIOAR AHMAD, J:- The respondent filed a suit under Order XXXVII, Rule 2 of the Code of Civil Procedure, 1908 ("CPC') against the appellant before learned Additional District Judge-V, Mardan, for recovery of an amount of Rs. 85,00,000/-. The suit was based on a Promissory Note bearing No. 826 dated 23.05.2019, whereof the appellant had allegedly borrowed said amount from respondent/plaintiff. In this regard, the appellant had also executed an lqrar Nama No. 508 dated 23.05.2019, statedly promising to return the borrowed amount by 23.08.2019.

It was further stated in said promissory note that the appellant would return the amount on demand of the respondent. After a lapse of 18 months, as agreed, the ptaintiff approached the appettant for repayment of the amount, but the matter was R['A No. 363-l>12022

delayed under one pretext or another. Consequently, the v respondent filed the suit.

2.Upon being served with summons, the appellant appeared, submitted a power of attorney, and filed an application for leave to defend. The appellant later absented himself, and as such, he was proceeded against ex parte. After recording ex parte evidence, learned court below passed an ex partejudgment and decree in favour of the respondent/plaintiff, dated 04.11.2021. .fhe appellant then filed an application for setting aside the ex parte decree, which was dismissed by learned court below vide order dated 26.05.2022. Feeling aggrieved, appellant has filed the instant appeal.

3.Arguments were heard and the record perused.

4.Perusal of record reveals that appellant has filed instant appeal against two orders:

(i)The ex parte decree dated 04. 11 .2021 , and

(ii)Order dated 26.05.2022 whereby his application for setting aside the ex parte decree was dismissed.

5.As far as the first order is concerned, appeal against ex partejudgment and decree dated 04.11 .2021was filed at a much belated stage, making it barred by the law of limitation. No application for condonation of delay was filed; hence, the appeal RFA No. 363-P/2022

against the judgment and decree dated 04.11.202r is not v maintainable for being time-barred.

6.Regarding the subsequent order dated 26.05.2022, the appellant had filed an application for setting aside the ex parte decree on 12.03.2022, whereas the ex parte decree had been passed on 04.11.2021. The appeal arising therefrom, as argued at the bar, required decision of the following questions:

(a)Whether the application for setting aside the ex parte decree had been filed within the prescribed period of limitation?

(b)Whether the application was meritorious and had been wrongly dismissed by the learned court below?

7.Regarding the first question, learned counsel for the appellant argued that the application had not been filed under Order 13 Rule 4 CPC and rather the same had been filed under Rule 4 of Order XXXVII CPC, for which no specific period of limitation has been prescribed, therefore, Article 181 of the Limitation Act, 1908, would govern the case. That the application was filed well within the prescribed time and in support of his contention, learned counsel for appellant also relied upon the following judgments:

a 2014 CLC 105 (Lahore High Court)

a 20lI CLC 950 (Lahore High Court) a 2004 YLR 416 (Karachi) (Sindh High Court) RFA No. 363-P/2022

o l99l MLD 1803 (Karachi) (Sindh High Court)

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8.Learned counsel for respondent however stated that it was an application under order 13 rule 4 CPC and prescribed period of limitation was one month.

9.Since the exparte decree had been passed in summary jurisdiction provided in order 37 CPC therefore, special procedure being prescribed under rule 4 of order XXXVII CPC would be available in the case in hand and application of appellant would be considered to have been the one filed under said provisions of law. Rule 4 of order XXXVII CPC was providing as follows;

"4. Power to set aside decre(8.----After decree the Court ffity, under special circumstances, set aside the decree, and if necessary stay or set aside execution , and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the court so to do, and on such terms as the court thinks fit."

10.Hon'ble Sindh High Court in its judgment rendered in case bearing title Habib Bank Ltd..vs..Mussarat Ali Khan reported as PLD 1987 Karchi 86 has already settled the question that an application under order XXXVI rule 4 Code of CPC would be govemed by article 181 ofthe Limitation Act, 1908 as no special item in schedule-l 0f the Limitation Act, 1908 had bene providing a period of limitation for filing such an application.

Said view was also followed by Hon'ble Sindh High Court in its RFA No. 363-P12022

subsequent judgment reporte d as 2004 YLR 416. A similar view v has also been expressed by the Hon'ble Lahore High Court in its judgment reported as 2014 CLC 105 as well as this court in its earlier judgment rendered in case of Tariq Jamil Bangash and another..vs..Auaullah Khan Khattak ( 2015 MLD 343). This court therefore finds no difficulty in answering the question that the governing Anicle in schedule-l of limitation Act would be Article 181 in the case in hand and the application filed by appellant before the court below was well within time.

Observations of the learned court below, in this respect were not correct so for as the question of limitation was concerned.

11.'l'he second question is relating to merits of the application. This court will have to see whether appellant was having a case for setting aside the exparte decree under rule 4 of Order XXXVII CPC. The relevant consideration provided in said rule were not entirely identical with the one prescribed under order 13 rule 4 CPC. Under Order XXVII rule 4, existence of special circumstances for setting aside a decree under said rule has becn mentioned as the relevant consideration. Hon'ble Sindh High Court while giving its judgrnent in case of Tahir A Khan vs Messrs united Air Travels Ltd and others reported as2004 YLR 4l6Karachi (supra) had held that the word special circumstances occurring in rule 4 would not connote ordinary circumstances or events of routine but would indicate circumstances which were RFA No. 363-P12022

uncommon, rare and exceptional. Relevant observations rendered in said judgment are also reproduced for ready reference

"5. The other reason given by the learned District Judge for dismissal of the application of Tahir Khan was that no special circumstances had been made out to set aside the decree. The term ttspecial circumstances" had not been defined in C.P.C or any other law. However, according to the judgment in the case of Muhamad Yousuf vs. Abdul Majeed PLD 1993 Lahore 244 at 248, it has been hetd "that the works 'special circumstances' occurring in rule 4, would not connote 'ordinary circumstances' or event of routine out would indicate circumstances which are uncommon, rare and exception al."

12.Returning back to the instant case for seeing whether any circumstances had been existing in the case in hand, warranting setting aside of the decree, this court finds that a petition under Order XXXVII CPC had been filed by Inamullah on 10.12.2020.

Petitioner was summoned whose attorney appeared before the court on 6.1.2021 and filed wakalafirama, along with an application for grant of leave to defend. Leave to defend was granted to him on23.8.2021 conditionally, subject to submission of bail bonds in the sum of the disputed amount of Rs. 85,00,000/-. He failed to fulfiII the condition and did not submit surety bond. He also remained absent and it was on 6.9.2021that appellant was proceeded exparte. An exparte decree was granted in the matter on 4.1L.2021 by the court after recording exparte RFA No. 363-P/2022

evidencc. The application for setting aside ex.parte decree was filed on 15.3.2022. Perusal of the application reveal that appellant had filed same on the following grounds;

(a)that a separate FIR No. 2l4l dated z7.rr.2ozo had also been registered against him under section 429-468-4g9-419 ppc at Police Station city Mardan and that when BBA had been pending before the court of Mr.ubaid ullah, Addl: Sessions Judge, Mardan a compromise had been effected before said court. It was also mentioned in the application that in said compromise deed the complainant had stated that he had got himself satisfied that no amount was outstanding against the accused/petitioner;

(b)that a writ petition had been filed before the Peshawar [{igh Court in which the temporary injunction had been granted which order had been produced before the court in the case titled Inamullah vs. Bashir Khan and proceedings in the case had been adjourned sine die;

(c)that the case was wrongly decreed exparte.

(d)that appellant had also received threats from proscribed organization in respect of which he had also filed application before DIG Mardan and had also held a press conference.

13.So far as first ground relating to the compromise effected at the BBA stage was concerned, the compromise deed is RFA No. 363-P12022

available on page 36 of the instant file, perusal of which reveal

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that assertions in the application have wrongly been made. The fact (evident from the text) was that it was appellant who had owned the entire liability for payment of Rs. 85,00,000/- in said compromise deed. So far as second issue was concerned, in order dated 01.4.2021 in WP No. 692-Pl202l (copy of which was annexed with the instant petition), this court had not issued any stay order in respect of the proceedings before the Civil Court rather an order had been passed that no adverse action should be taken against the petitioner in the meanwhile. Learned counsel for appellant could not produce any other order showing that this court had ever stayed proceedings in the pending suit. Said ground was also holding no water.

14.In the circumstances when appellant had not been able to fulfill the condition of submission of bail bonds leave to defend would also be deemed to have been recalled or rendered invalid.

Ex-parte decree was justified on the basis of ex-parte evidence recorded before the court and nothing could be substantiated that same was illegal or without jurisdiction. The exparte decree was passed on the basis of evidence recorded before the court. [n case of "Haji Ali Khan and Company, Abbottabad and 8 others v.

Messrs Allied Bank of Pakistan Limited, Abbottabad" (PLD 1995 Supreme Court 362), it has been held;

"10...if a defendant fails to appear or fails to obtain leave to defend in response to a summons served in form No.4 provided in RFA No. 363-P/2022

Appendix B to the c.P.c. or fails to fulfil the condition on which \-, Ieave was granted or where the court refuses to grant reaven the Court is to pass a decree...',

Similar view has also been followed by the Hon'ble supreme Court in the Casc of Abdullah v. Shukat (2001 SCMR 60) and Muhammad Ramzan v. Ghulam Qadir (2011SCMR 659).

15.The plea regarding receipt of threats from proscribed organizations was also not of such a nature which could prevent the appellant from pursing his remedy before the court at Mardan. Even otherwise he had been appearing before the court through counsel and attorney who could have pursued said case.

So much so the condition of surety bond was not fulfilled and the conditional leave for defense of the suit was also not available to the appellant. In such circumstances no special reason had been existing whcreunder the decree could have been set aside under order 37 rule 4 Code of Civil Procedure,l908. The application was not meriting acceptance and question No.2 framed above is accordingly answered.

16.In light of what has been discussed above, it is held that the application of the appellant was no doubt within time but it was not disclosing sufficient cause for setting aside the decree under order XXXVII rule 4 Code of Civil Procedure,l90S and there were no special circumstances for setting aside the exparte decree granted against the appellant therefore, the impugned RFA No. 363-P120?.2

a

order could not be set aside. Resultantly instant appeal is dismissed.

Annoolnced on;

ISth of April,2025 *,3'g.rtlrg,d* .-it,--

(SB)Mr. Justice Wiqar Ahmad

RFA No. 363-P/2022