' ATTAULLAH KHAN, J.--- Muhammad Naeem Khan, petitioner herein, has filed this revision petition under section 115, C.P.C. Against the order dated 23-2-2010 passed by the learned Additional District Judge-V 11 D.I. Khan, whereby leave to defend the suit was granted to Muhammad Javed Iqbal, respondent herein, subject to his furnishing surety bond of Rs,1,70,000/- with two sureties each in the like amount to the satisfaction of said Court.
2. Briefly stated facts of the case leading to the filing of this revision petition are that the petitioner had sued the respondent for recovery of Rs,1,69,000/- in connection of pro note and counsel fee etc. The defendant was served on 16-12-2009 but he filed application for leave to defend on 5-1- 2010 which was objected by the plaintiff being time-barred but was accepted through the order which is now under challenge in this petition.
3. Learned counsel for the plaintiff/petitioner contended that the trial Court has wrongly accepted the application for leave to defend because it was badly time-barred and no condonation was prayed.
4. On the other hand, learned counsel for defendant argued that the application for leave to defend was within time because the Court was closed for time days due to Winter Vacations which is to be excluded.
5. I have carefully gone through the record and considered the arguments of the learned counsel for the parties.
6. Perusal of the record discloses that the respondent was served on 16-12-2009 by the Process Server of the Court concerned. The defendant/respondent was required to have submitted application for leave to defend the suit within ten days. In this way, the last date for filing such application was 5-1-2010. If the plea of the respondent regarding closing of the Court for nine days due to Winter Vacations is accepted, even then he was required to have applied for such purpose on or before 4-1-2010 but instead he filed the said application on 5-1-2010. Even the exclusion of nine days is doubtful because only Presiding Officer of the Court happens to be on leave, while the office remains opened for filing/institution during such period. Furthermore, the defendant/respondent was served on 16-12-2009 and the Winter Vacations started on 24-12-2009, therefore, seven days were available to him during which he could have filed the said application.
Besides, the reason given in the impugned order that since the delay in filing application for leave to defend the suit was only one day, therefore, in the interest of justice, it was condoned, is not convincing because delay of each and every day is to be accounted for otherwise, the purpose of summary trial as envisaged under Order XXXVII, C.P.C. Would be defeated. The aim and purpose of the summary provision and summary trial is to dispose of the cases pertaining to promissory notes etc. At the earliest. It is settled principle of law that delay in filing application for leave to defend is to be explained sufficiently, failing which leave shall be refused. Reliance in this respect is placed on the case-law reported as B 1998 CLC 1135, wherein it has been held as under:-- "Through sub-rule (3) of Rule 3, the provisions of section 5 of the Limitation Act, 1908, have been made applicable to the applications under sub-rule (1). In the instant case, the learned counsel for the defendant appeared for the first time in the trial Court on 31-7-1993 and, therefore, the period of limitation began to run from that date. As during the month of August, the Courts were closed due to summer vacations, the defendant was bound to file application seeking leave to defend the suit on the first day of reopening of the Courts, i,e,, on 1-9-1993, whereas the application was filed on 12- 9-1993 and thus it was barred by 11 days. As it was not accompanied by the application under section 5 of the Limitation Act, the trial Court rightly rejected the same. In case of a belated application where condonation of delay was also sought, the delay of each day after the expiry of prescribed period of limitation has to be properly explained."
7 In the case in hand, the application was submitted beyond the period of limitation and no application for condonation of such delay was filed. Even in the said application, the defendant failed tb justify the delay.
8. Similar view has been taken in the case of Syed Sarwar Hussain Zaidi v. Abdul Hameed reported as 1999 MLD 2931, wherein it has been observed as under:--- "Likewise nothing was stated in the petition for condonation of delay as to how the delay occurred except the Civil Courts were closed in those days being the month of August. Needless to say for urgent matters, the Courts remain open but apart from that, the Courts having opened for regular work w,e,f, 1-9-1998, the present petition for leave to defend was filed on 15-9-1998 without showing any reason as to what prevented the petitioner/defendant to move the petition after the vacations were over"
9. Similarly, in case reported as Bagh Ali v. Habib Bank Limited and 2 others (PLD 1986 Lahore-124, it has been held that:--- "Admittedly, however, the application was submitted by him after ten days of his first appearance.
It was, therefore, time-barred. It is not disputed that the appellant had not made petition under section 5 of the Limitation Act for condonation of delay in the submission of the application for leave to defend the suit".
10. If we examine the case in hand in the light of case-law cited above, it stands established that delay of each and every day has to be sufficiently explained. Moreover, application for condonation of delay under section 5 of the Limitation Act is required to be filed within ten days which is missing in the present case. So, neither the delay has been properly explained in the body of the application for leave to defend the suit, nor separate application was submitted for condonation of such delay.
11. Keeping in view the above discussion, I am of the firm view that the impugned order of the trial Court is not in accordance with law.
12. Consequently, I accept this appeal and set aside the impugned order dated 23-2-2010 leaving the parties to bear their own costs.