' MUHAMMAD KHALID MEHMOOD KHAN, J.--- The respondent filed a suit against the petitioner for recovery of Rs,2,00,000 under Order XXXVII, Civil Procedure Code. The petitioner appeared and filed an application for leave to appear and defend the suit. However, the petitioner was proceeded against ex parte, her application for leave to appear and defend the suit was dismissed for non- prosecution and ultimately ex parte decree dated 24-7-2007 was passed against the petitioner.
2. Petitioner filed an application for setting aside ex parte decree which too was dismissed on 11-6- 2008, hence the present petition.
3. Learned counsel for petitioner submits that the respondent has lodged an F.I.R. Against the petitioner and involved her in criminal proceedings. He further submits that the petitioner while filing application for leave to appear and defend suit, specifically averred:- "that the respondent is a money lender and lends money on interest, having no licence for money lending and through foul acts gives money on interest and gets cheques for the loan for selling different articles like T.V., Washing Machine etc,. The said plaintiff lent money to the defendant vide three cheques but received the cash of Rs,225,000 in instalments and when the said defendant refused to pay more the said plaintiff. The cheques of Rupees two lac which were issued by the defendant. The defendant gave three cheques amounting to Rs,100,000, Rs,50,000 and Rs,50,000 there on, but the said plaintiff through forgery changed the amount payable and wrote a cheque of Rs,200,000. The defendant has cleared the amount payable and even paid Rs,225,000 over and above amount due. The plaintiff got registered a case F.I.R. No,924/2006 dated 11-11-2006, under section 489-F P.P.C. In Police Station Ghalib Market, Lahore and learned Additional Sessions Judge Imam Ali Shah. Lahore confirmed the pre-arrest bail of the defendant with observation that the defendant has nothing to pay to the plaintiff'
4. But the learned trial Court while passing ex parte decree has failed to appreciate the fact that the respondent/plaintiff is money lender and used to lend money without license. The business of respondent is against law. He further submits that the learned trial Court while passing the decree has failed to appreciate the contents of plaint in which the respondent averred that he handed over ten Television sets of Sony Brand and in lieu thereof, the petitioner issued a cheque of Rs,200,000. He further add that learned trial Court has failed to appreciate the fact that petitioner being a school teacher could not obtain ten Television sets. He further submits that learned trial Court while dismissing, the application for setting aside ex parte decree has not framed the issue and recorded the evidence and summarily dismissed the application on the sole ground that the petitioner has filed application after the statutory period of limitation i.e. 30 days and that the decree has been passed eight months ago but the petitioner has failed to file the application within limitation period.
5. Learned counsel for respondent submits that petitioner appeared before the learned trial Court, filed an application for leave to appear and defend the suit but subsequently she failed to appear and her application was dismissed for non-prosecution. The petitioner has not assailed the said order and even if the decree is set aside the order for dismissal of application for leave to defend will remain intact. He further adds that learned trial Court recorded the ex parte evidence Of the respondent and then decreed the suit and as such it could not be said that it is an ex parte decree.
He submits that the contents of application for leave to appear and defend the suit were frivolous and as such learned trial Court has rightly ignored the contents of application. He supported the impugned judgment, and decree as well as the order for dismissing the application for setting aside the ex parte proceedings. He further: submits that application has been filed after eight months and as such it was hopelessly time barred.
6. Heard. Record perused.
7. The respondent while filing the plaint has averred that the petitioner purchased ten T.V. Sets of Sony Brand 21 inch from him and issued a cheque of Rs,200,000, when the cheque was presented, it was dishonoured. He lodged an F.I.R. Against the petitioner and petitioner was enlarged on pre- arrest bail. The F.I.R. No,924/2006 is available on record. The averments of plaint and F.I.R. Differ with each other. In F.I.R., the respondent alleged that:- {{URDU TEXT}}
8. Whereas in the suit, the respondent averred as under:--- "that the defendant purchased 10 TV Sony 21" from the present plaintiff and issued a cheque of Rs,200,000. "
9. In the plaint, the respondent averred that he sold ten Televisions to the respondent whereas in F.I.R. He alleged that the petitioner availed a loan of Rs,2,00 000. Both the documents were available on court file and the learned trial Court while passing the ex parte decree was duty bound to consider these two documents even if the petitioner was not present in the court and was proceeded against ex parte. The petitioner has specifically raised the objection in her application for leave to appear and defend the suit that the respondent is doing an illegal business, he is lending money on interest without any licence and as such it became more important for the trial Court to consider this aspect of case.
10. It is an admitted fact that in Pakistan except the financial institutions or any other company authorized by State Bank of Pakistan cannot do the business of lending money and as such the learned trial Court was bound to examine this aspect of the case when the respondent appeared in the witness box for ascertaining the fact that illegal lending could be recovered through court. It is settled, principle of law that the court is the custodian of rights of both the parties and cannot ignore the real facts available on record even if one party is proceeded ex parte or is not present in court. Suppose someone files a suit of damages of huge amount against any person and the respondent/defendant failed to appear whether the court will pass the decree straightaway without probing the matter in detail to the effect that the claimant has suffered a loss.
11. As far as the limitation for filing the application for setting aside decree in a suit under Order XXXIX is concerned, the application under the special procedure for setting aside the decree even on merit is maintainable under Order XXXVII, Rule 4, C.P.C. Which is read as under:- "4. Power to set aside decree.-- After decree the Court may, 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."
12. Under the above provision, the learned trial Court even can set aside a decree passed on merits if the applicant succeeded to prove that there are special circumstances for setting aside the decree. Under the above provision of law the learned trial court enjoy the powers to allow application for leave to appear and defend the suit where the decree has been passed. Needless to mention that the application under the above rule is covered by Article 181 of the Limitation Act, 1908 and thus the period for filing the application is three yeaRs,
13. The facts of the above said case will show the point required for consideration was whether the amount claimed by the respondent is based on money lending without permission by the Competent Authority which the learned trial Court has failed to consider. In the above circumstances the petitioner has successfully made out case of special circumstances under Order XXXVII, Rule 4, C.P.C. And as such the petitioner's application was well within time.
14. The up shot of above discussion is that the impugned order dated 11-6-2008 and impugned ex parte decree dated 24-7-2007 along with order dated 15-5-2007 are set aside consequent upon the petitioner's application for leave to appear and defend is deemed to be pending. The case is remanded to the learned trial Court who will decide the petitioner's application for leave to appear and defend the suit, after hearing the parties in accordance with law.
15. In view of above, instant petition is allowed.