1. ' SAHIB KHAN, J.--- Petitioner/defendant has assailed the impugned judgment/decree, dated 29-4- 2006, passed by the District Judge Gilgit through this revision petition.
2. ' The stated facts of the litigation are that plaintiff/respondent (National Bank of Pakistan) through Manager National Bank Main Branch, Gilgit filed a Civil Suit No,1 of 2005 on 28-4-2005 under Order XXXVII of C.P.C. For recovery of amount Rs,2,76,511 on the basis of promissory note in the Court of District Judge, Gilgit.Defendant/petitioner appeared and submitted an application seeking leave to defend the case on certain grounds. The learned Judge after hearing the parties allowed the petitioner to defend the case on 4-3-2006, the order reads as follows:-- ' 4-3-2006. Plaintiff counsel present. Defendant present in person. Counsel for defendant present.
3. Heard. Petition of defendant for leave to defend accepted. Put up on 5-4-2006 for filing written statement.
4. (Sd.) District Judge, Gilgit.
5. ' The date fixed for filing of written statement adjourned to 29-4-2006 by the Reader of the Court, as the Judge was busy in other cases. On 29-4-2006, the learned District Judge passed the impugned order reads as below:-- 29-4-2006. Counsel for the plaintiff present. Defendant present in person, and request for adjournment. Request refused and defendant debarred to file petition for leave to defend. Suit of the plaintiff decreed, throughout, with costs. File.
6. (Sd.) District Judge, Gilgit.
7. ' I have heard the counsel for the parties.
8. ' Counsel for the petitioner submitted that the impugned order/decree being ab initio void and lacking jurisdiction of the Court below is not tenable hence liable to be revised. He referred:--
(1) 1992 SCMR page 719, (2) 1990 CLC page 301 and (3) 1989 CLC page 2212.
9. The counsel for the respondent attacked the maintainability of the petition with the contention that an appeal lies against the final order/decree passed under Order XXXVII, C.P.C. His next submission was that the petitioner has failed.To challenge the decree and similarly required court-fee has not been affixed on the petition.
10. ' It is evident from the impugned order, dated 29-4-2006, that the learned trial Judge has passed a decree, debarring the defendant from filing petition for leave to defend. I could not understand the background of the order it might happened that the learned District Judge was not appraised properly. In fact as the order, dated 4-3-2006 transpires, the learned District Judge had accepted the petition for leave to defend unconditionally and defendant was required to submit written statement. On 5-4-2006, the Judge was busy and the date 5-4-2006 was adjourned by the Reader of Court according to the order-sheet dated 5-4-2006, there were no specific directions by the Court or by the Reader of the Court required from the defendant for performance. Thus, the date of 29-4-2006 had no action except its adjournment or further directions, but the learned District Judge without any reason and cause passed a decree by dealing the petition for leave to defend, which he had already allowed on 4-3-2006.
11. ' It is also noticeable that the order/decree passed on 29-4-2006, was not permissible in the presence of order dated 4-3-2006, under law, once the learned District Judge has allowed the defendant to defend and also granted time for filing of written statement then, how and why he can recall the orders allowing leave, without any request of the parties or any notice to the affecting party.
12. ' There is no cavil to the position that after granting of leave to appear and defend the suit to a defendant, procedure in the summary suit is the same as the procedure in the suit instituted in ordinary manner. This is so provided under Order XXXVII, rule 7, C.P.C.
13. ' There is no force in the objection raised by the learned counsel for the respondent that a revision is not maintainable against an order/decree passed under order XXXVII, rule 3 of the Code. The expression as given under section 115 of C.P.C. Is very much clear to repeal the above contention.
14. The order of the trial Judge was passed on no material and ex facie appeared to be reversed.'
15. Therefore, this Court has got jurisdiction as provided under section 115 of C.P.C.
16. ' For the foregoing reasons Civil Revision Petition No,16 of 2006 filed by the petitioner/defendant is accepted. The order/decree of learned trial Judge dated 29-4-2006 set aside. Case file remitted back to trial Judge for trial under procedure. File.