' MAULVI ANWARUL HAQ, J.---On16-4-2004 the respondent filed a suit for recovery of Rs,35,000 against the petitioner under Order XXXVII, C.P.C. On the basis of a pro note. Summons were issued in the manner prescribed. The service was effected by proclamation in thenewspaper. The petitioner failed to appear and to apply for leave to defend the suit which was accordingly decreed ex parte on 1-12-2004, after recording the ex parte evidence, by a learned Additional District Judge, Sahiwal. On 3-6-2005 the petitioner filed an application under Order XXXVII Rule 4, C.P.C. For setting aside of the said decree. The application was dismissed by the learned Additional District Judge on 19-1-2006.
2. Learned counsel for the petitioner contends that no limitation having been provided for filing of application under Order XXXVII, Rule 4, C.P.C., the matter was to be governed by Article 181 of the.
Limitation Act, 1908 and the learned Additional District Judge has acted with material irregularity in the exercise of his jurisdiction while dismissing the application as barred by time. Learned counsel for the respondent, on the other hand, cited the case of Shahid Pervaiz alias Shahid Hameed v.
Muhammad Ahmad Ameen (2006 SCMR 631) to urge that the limitation for an application of the instant nature is 30 days and the same has been correctly dismissed as barred by time. He vehemently contends that even if it be assumed that the application is within time, it does not fulfil the criteria laid down in Order XXXVII Rule 4, C.P.C. For setting aside of decree. The precise contention is that neither aplausible defence has been disclosed in the said application for a separate application has been filed within the time prescribed by law to seek leaveto appear and to defend the suit. It is in the application itself that thepetitioner was aware of the decree on 3-5- 2005. Learned counsel for the petitioner rejoins to urge that the application could have been filed aftersetting aside of the decree and the limitation would be 10 days from the date of setting aside of the ex parte judgment and decree. He cites the cases of Habib Bank Limited v. Mussarat Ali Khan (PLD 1987 Karachi 86) and United Bank Ltd. v. Nishat Chemical Industries Ltd. And 6 others (1986 CLC 1985).
3. I have considered the respective contentions of the parties noted above. There is no denial that the suit is based on negotiable instrument and that the summons had been issued in the prescribed form. The plea in the application filed on 3-6-2005 for setting aside of the ex parte judgment and decree, dated 1-12-2004 was that the summons did not reach him although his address was correctly stated in the plaint and that some relative informed him of the ex parte judgment and decree on 3-5-2005. In was also stated in the application that the petitioner applied for a copy of the decree which was delivered to him on 17-5-2005. So far as the question of limitation is concerned, the Third Division of the Schedule to the Limitation Act, 1908, comprising Articles 158 to 183 deal with the applications. The only application under Order XXXVII C.P.C. For which a limitation is provided in the said Schedule is one for leave to appear and to defend a suit under Article 159 of the said Act. A defendant in such a case is required to demonstrate special circumstances so as to enable the Court to set aside the decree and to grant him leave to appear and to defend the case. The reason being that unlike an ordinary suit a defendant in a suit under Order XXXVII, C.P.C. is not authorized to put in appearance and, of course, to defend the suit without obtaining leave of the Court. I, therefore, do find that in the said circumstances, the application would be governed by Article 181 of the Limitation Act. The case of Muhammad Ishaque Khan v.
Naveed Ahmad (2004 CLC 1640) may be referred.
4. Now the case of Shahid Pervaiz alias Shahid Hameed being cited by the learned counsel for the respondent is distinguishable. As per facts narrated in the said judgment, pursuant to the filing of the suit and receipt of summons, the petitioner before their Lordships put in appearance and applied for grant of leave to appear and defend the suit which was granted. A written statement was filed and issues were framed. It was thereafter that on a date fixed for hearing the defendant absented himself and the suit was decreed ex parte on 3-1-2004. Application under Order XXXVII Rule 4, C.P.C. Was filed on 11-5-2004. The applications were dismissed in default on 10-7-2004. An application filed for restoration on 2-2-2005 were dismissed on 27-4-2005. The civil revision was dismissed by this Court while the C.P. Was dismissed by the Hon'ble Supreme Court of Pakistan.
Now as per Rule 7 of Order XXXVII C.P.C. , once the leave is granted unconditionally or upon performance of the condition attached to the leave granting order, is complied with, then the ordinary procedure becomes applicable. I have already noted above that the ex parte decree was passed after the said stage has gone-by, written statement had been filed and the issues were framed. The matter was, therefore, governed by Article 164 governing an application in terms of Order IX Rule 13, C.P.C. It was in the said factual background that it was held that the limitation is 30 days. In the present case, the defendant had not put in appearance and, of course, had not applied for leave to appear and to defend the suit within the time prescribed.
5. However, the said second contention of learned counsel for the respondent has force. The two judgments from Karachi jurisdiction cited by the learned counsel for the petitioner deal with the cases under the Banking Companies (Recovery of Loans) Ordinance, 1979. However, both these judgments failed to take note of the case of Abdul Karim Jaffarani v. United Bank Ltd. And 2 others (1984 SCMR 568). The provisions of Order XXXVII Rule 4, C.P.C. On plain reading required a defendant to establish special circumstances and more particularly to demonstrate facts constituting a plausible defence in order to enable the Court to set aside the ex parte and further to grant him leave toappear and to defend the case. Thus, the petitioner has failed to do. The civil revision accordingly is dismissed without any orders as to costs.