' NASIR SAEED SHEIKH, J.---Abdul Hameed the present petitioner was the defendant in the suit and now is the judgment debtor in an ex parte judgment and decree dated 8-8-2011 passed against him by the learned Additional District Judge, Faisalabad for the recovery of Rs,700,000 in a suit instituted by the respondent under Order XXXVII Rules 1 and 2, C.P.C.
2. The petitioner was allowed to appear and defend the suit by the learned Additional District Judge Faisalabad. After the grant of leave written statement was submitted by the petitioner and the following issues were framed on 26-10-2010:- ISSUES
(1) Whether the defendant executed promissory note valuing Rs,700,000 dated 15-7-2009 in favour of plaintiff in connection with return of plaintiff's money, borrowed by the defendant? OPP
(2) Whether the promissory note in question is forged and fictitious and does not bear the signatures and thumb impressions of the defendant? OPD
(3) Relief.
' The petitioner absented himself from the court proceedings on 18-5-2011 and the learned Additional District Judge directed ex parte proceedings against him. Evidence of the respondent was recorded and an ex parte judgment and decree dated 8-8-2011 was passed against the petitioner for the recovery of the amount in question as prayed for by the respondent in his plaint.
The execution proceedings were commenced upon an application moved by the respondent/decree holder. The petitioner appeared before the learned Executing Court/Additional District Judge on 2-11-2011 and was taken into custody subject to furnishing of surety bond which the petitioner submitted and was released the same day by the learned Executing Court.
3. The petitioner then moved an application on 8-12-2011 under Order IX, Rule 13, C.P.C. For setting aside the ex parte judgment and decree dated 8-8-2011. This application was contested' by the respondent/ decree holder and was dismissed by the learned Additional District Judge vide order dated 13-1-2012.
4. Through the instant Civil Revision the petitioner has assailed the order dated 13-1-2012.
5. It is contended by the learned counsel for the petitioner that the ex parte proceedings were, directed against the petitioner on 18-5-2011 which was not fixed as a "date of hearing" of the main suit and only a miscellaneous application was fixed on the said date. It is next contended that the learned Additional District Judge has dismissed the application of the. Petitioner for setting aside ex parte judgment and decree dated 8-8-2011 on the ground that there was no sufficient cause disclosed by the petitioner for his sudden absence from the court proceedings and that application moved by the petitioner for setting aside the judgment and decree is hopelessly barred by time and the petitioner having not moved any application under section 5 of the Limitation Act 1908 seeking condonation of delay therefore the petition was liable to be dismissed.
The learned counsel contends that in the first instance, the petitioner's counsel was arrested in a murder case vide F.I.R. No, 264 dated 9-4-2011 and he was granted bail vide order dated 12-10-2011 by this Court passed in Criminal Miscellaneous No,12876-B of 2011 therefore the absence of the petitioner was due to the above mentioned circumstances. It is further contended by the learned counsel for the petitioner that the learned Additional District Judge committed grave illegality by declaring the application moved by the petitioner for setting aside the ex parte judgment and decree to be barred by time as according to the learned counsel for the petitioner no limitation period was prescribed for moving an application for setting aside the ex parte judgment and decree dated 8-8-2011 under Order XXXVII of C.P.C. Therefore the application moved on 8-12-2011 for setting aside of the ex parte judgment and decree dated 8-8-2011 was within time. It is next contended that the order directing the ex parte proceedings against the petitioner having been passed on a date which was not a date of hearing of the suit therefore all the subsequent proceedings were illegal and ithout lawful authority. The learned counsel for the petitioner relied pon the judgments reported as QAIM ALI KHAN V. MUHAMMAD .IDDIQUE (1987 SCMR 733), HASHIM KHAN V. NATIONAL BANK OF PAKISTAN (1992 SCMR 707), QAZI MUHAMMAD TARIQ V. HASIN JAHAN AND 3 OTHERS (1993 SCMR 1949), KRISHEN LAL MALHOTRA V.
1. MADAN LAL 2. PINDI DASS AND 3. HARBANS LAL MALHOTRA (PLD 1950 LAHORE 82), MUHAMMAD HUSSAIN V. ALLAH DAD AND 13 OTHERS (PLD 1991 SC 1104) and WATER AND POWER DEVELOPMENT AUTHORITY THROUGH CHAIRMAN AND 3 OTHERS V. MIR KHAN MUHAMMAD KHAN JAMALI AND ANOTHER (2006 CLC 92) to contend that no order of ex parte proceedings can be passed in a suit on a date which is not fixed as a date of hearing of the suit and is only fixed for hearing a miscellaneous application. The learned counsel contends that in such like situation this Court can set aside the ex parte judgment and decree subject to payment of costs as ample powers are available to the Court to adopt the said course. Reliance in this respect is placed on the judgments reported as DHANJISHAW BEHRAMJI GHADIALLY AND OTHERS V. ABDUL LATIF KHAN (1983 SCMR 1003) and WATER AND POWER DEVELOPMENT AUTHORITY V. MUHAMMAD HAYAT KHAN AND 7 OTHERS (PLD 1986 Peshawar 81).
6. I have considered the arguments of the learned counsel for the petitioner.
7. The suit instituted against the petitioner by the respondent was under a special procedure prescribed under Order XXXVII of C.P.C. The application moved by the petitioner for setting aside of the ex parte judgment and decree dated 8-8-2011 has been placed as Annexure-M and the following four grounds were alleged by the petitioner in his application:--
(i) That the petitioner was prevented by his earlier counsel from attending the Proceedings, as he did not inform the petitioner about dates of hearing.
(ii) That lawyers have been on strike continuously for a considerably long period of time, which resulted in passing of ex parte decree.
(iii) That law favours adjudication on merits, rather technicalities.
(iv) That the petitioner (Petitioner) in the interest of justice be given opportunity to produce his evidence.
' Although the petitioner has mentioned in his application the provisions of Order IX, Rule 13 of C.P.C.
But as per provisions of Order XXXVII, Rule 4 of C.P.C. a Special Procedure has been prescribed for the setting aside of an ex parte decree. Order XXXVII, Rule 4 of C.P.C. Is reproduced below:-- "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."
' The court passing the decree under Order XXXVII of C.P.C. Has to be satisfied with the existence of special circumstances for setting aside the decree passed against the judgment debtor under the special procedure. The phraseology adopted by the provisions of Order XXXVII, Rule 4 of C.P.C. Is quite distinct and different from the provisions of Order IX, Rule 13 of C.P.C. The later law visualizes the moving of an application for setting aside of an ex parte judgment and decree where the judgment debtor is prevented by any sufficient cause from appearing when the suit was called on for hearing. The term "Special Circumstances" adopted in Order XXXVII, Rule 4 is restrictive in its scope than the terms "good cause" and the "sufficient cause" adopted under the provisions of Order IX Rule 13 of C.P.C. A special provision has been enacted regarding a particular situation for setting aside of a decree passed under the procedure of Order XXXVII of C.P.C., therefore the general provisions of order IX Rule 13 of C.P.C. Cannot be invoked by a judgment debtor against whom a decree under Order XXXVII of C.P.C. Has been passed. Reliance in this respect is placed upon the judgments reported as JAVED HUSSAIN ANSARI V. MUHAMMAD AYAZ KHAN (2005 SCMR 1655), ALLIED BANK OF PAKISTAN LTD. V.C.KHILNANI AND 2 OTHERS (PLD 1984 KARACHI 127), HABIB BANK LTD. V. ABDUL LATIF NASIR AND 3 OTHERS (PLD 1990 KARACHI 212), NATIONAL BANK OF PAKISTAN V.
MESSRS HOME AIDS CORPORATION AND' ANOTHER (PLD 1989 LAHORE 213), MUHAMMAD YOUSAF V.
ABDUL MAJID (PLD 1993 LAHORE 244) and NASEER AHMAD V. MUHAMMAD MUSHTAQ (2006 MLD 1936).
8. The perusal of the application moved by the petitioner for setting aside the ex, parte judgment and decree passed against him as reproduced above did not make out any Special Circumstances for seeking the setting aside of the ex parte judgment and decree dated 8-8-2011.
He levelled allegation in ground (i) against his earlier counsel who prevented him from attending the proceedings as the petitioner was not informed about the dates of hearing. The mentioning of general strike is also vague and non-specific. The petitioner appeared before the learned Executing Court later after the passing of the decree dated 8-8-2011 on 2-11-2011 and even executed surety bond and was released the same day and then he wasted a considerable time till 8-12-2011 when he moved this application for setting aside the decree dated 8-8-2011 on the grounds mentioned above. The contention raised by the learned counsel for the petitioner today that the learned counsel for the petitioner who was conducting the case before the learned trial court was arrested in some criminal case has not been mentioned in the application moved by the petitioner for setting aside the ex parte judgment and decree dated 8-8-2011. An applicant for seeking setting aside of the judgment and decree moving the Court even within the prescribed period of limitation, cannot seek the relief without making out a case of Special Circumstances for setting aside of the judgment and decree passed against him as visualized by the provisions of Order XXXVII, Rule 4 of C.P.C.
9. In this context reliance is placed upon the judgment reported as SHAHID PERVAIZ ALIAS SHAHID HAMEED V. MUHAMMAD AHMAD AMEEN (2006 SCMR 631) in which a suit was instituted under Order XXXVII Rules 1 and .2 of C.P.C. And an ex parte decree was passed against the judgment debtor who moved an application for setting aside of the ex parte decree after four months of the passing of the decree. The honourable Supreme Court of Pakistan held that the defendant of the suit and his counsel were not vigilant in pursuing the matter to find out what happened on the date when they did not attend the Court. The petitioner was admittedly appearing in the court proceedings when on 18-5-2011 he absented himself and this absence continued till 8-8-2011. The petitioner even did not bother to enquire about the fate of the proceedings when ultimately he received a notice from the learned Executing Court on 2-11-2011 and submitted a surety bond and was released the same day by the learned Additional District Judge Faisalabad and then he moved an application on 8-12-2011 for setting aside the ex parte judgment and decree dated 8-8-2011 and that also under a wrong provision of law.
Notwithstanding the above legal defect, the petitioner failed to make out a case of existence of Special Circumstances in his favour in the application moved by him before the learned Additional District Judge for setting aside of the judgment and decree dated 8-8-2011. The honourable Supreme Court of Pakistan in the judgment noted above as (2006 SCMR 631) laid down the law that such a conduct of a judgment debtor cannot be approved of for setting aside of the judgment and decree under Order XXXVII of C.P.C. When the application was moved for the purpose after four months of passing the ex parte decree. The honourable Supreme Court of Pakistan also laid down in the judgment that the provisions of Article 164 of the Limitation Act 1908 would be attracted and applicable for the purpose of determination of the period of, limitation for the setting aside of the ex parte judgment and decree as well.
10. The case-law cited by the learned counsel for the petitioner is not relevant to the facts and circumstances of the instant case.
11. In view of all the circumstances the instant Civil Revision being devoid of any legal force is dismissed in limine.