' M. SOHAIL IQBAL BHATTI, J.---Through this appeal, the appellant has challenged the order dated 7- 3-2014 passed by learned Additional District Judge, Rahim Yar Khan through which the application filed by the appellant under Order XXXVII Rule 4 C.P.C. Against the ex parte judgment and decree dated 18-6-2011 was dismissed.
2. The facts of the case are that a suit for recovery of Rs.90,000 was filed by the respondent under Order XXXVII, Rule 2, C.P.C., for dishonor of a cheque on 8-7-2009. The appellant appeared before the trial Court and filed an application for leave to defend the suit. The application filed by the appellant was accepted on 3-9-2009 and thereafter issues were framed on 29-9-2009 and the case was fixed for adducing of evidence. The evidence of respondent's witnesses was recorded.
The appellant being a defendant did not produce any evidence despite availing a number of opportunities, but instead of producing his evidence, the appellant absented himself from the Court, on 11-6-2011 appellant was proceeded against ex parte, and thereafter ex parte judgment and decree was passed against the appellant on 18-6-2011.
3. Against this judgment and decree dated 18-6-2011 an application under Order XXXVII Rule 4, C.P.C., was filed by the appellant on 10-12-2011 for setting aside the ex parte judgment and decree which was dismissed through impugned order dated 7-3-2014.
4. The learned counsel for the appellant primarily hinged his arguments on one ground that law favours adjudication upon merits and the parties should not be knocked out on the basis of technicalities.
5. I have considered the arguments advanced by the learned counsel for the appellant and have also. Perused the record.
6. It is an admitted fact that the appellant had been participating in the proceedings. It is also established from the application filed by the appellant for setting aside ex parte judgment and decree, that on 26-5-2011 the appellant did not appear before the trial Court on account of death of his close relative; but one fails to understand as to why the appellant did not approach his counsel or the Court where the suit was pending after 26-5-2011, 11-6-2011 and 18-6-2011 and it does not appeal to the prudent mind that the appellant did not approach the Court after passing of judgment and decree A he was suffering from Typhoid fever till 10-12-2011.
7. It was only after the appellant was summoned through Warrants of Arrest by the executing Court, when the application for setting aside the judgment and decree was passed under Order XXXVII, Rule 4, C .P.0 .
8. I must observe that application was barred under the Limitation Act and I do not find myself in agreement with the arguments advanced by the learned counsel for the appellant that the period of limitation for filing such application would be governed by Article 181 of the Limitation Act, 1908.
9. In my opinion, the decree referred to in Order XXXVII, Rule 4 of C.P.C. Is that which may have been passed on failure of defendant to appear and seek leave or on non-compliance with the conditional order granting leave to defend. The decree may be set aside under Order XXXVII, Rule 4, upon the application of defendant showing special circumstances for his inability to appear and obtain leave to defend within 10 days or on his not appearing after having been granted leave to defend. But in the present case, the appellant had appeared before the Court, filed an application for leave to defend the suit which was allowed, issues were framed, evidence of the respondent/plaintiff was recorded and thereafter the appellant after obtaining numerous opportunities for producing his evidence, absented himself from the proceedings and therefore Article 181 of the Limitation Act would not come to the rescue of the appellant.
10. From bare perusal of Order XXXVII Rule 4 of C.P.C., it transpires that after decree, the Court may under special circumstances set aside the decree and may grant leave to defendant to appear to the summons and to defend the suit which primarily shows that the provisions of Order XXXVII, Rule 4, C.P.C. Comes into force only when the defendant was not granted leave to appear and defend the suit earlier and after grant of leave to appear and defend the suit, the provisions of Order XXXVII; Rule 4, C.P.C. Becomes redundant. The provisions of Order XXXVII Rule 4, C.P.C. Are reproduced below:-- "Power to set aside the 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 who appears to the summons and to defend the suit, if it seem reasonable to the Court so to do, and on such terms as the Court thinks fit."
11. The words mentioned in the rule ibid "and may give leave to appear to the summons and to defend the suit" clearly reveals the intention of the legislature that the rule ibid was framed for the person who has failed to appear in response of the summons and to file application for grant of leave to appear and defend the suit.
12. In case titled "Naseer Ahmad v. Muhammad Mushtaq" 2006 M LD 1936 it has been held by this Court that under 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 decree and further to grant him leave to appear and defend the case, hence when question of leave to appear and defend the suit is not pending before the Court then provisions of Order XXXVII, Rule 4, C.P.C. Could not be applied.
13. I cannot hold myself from observing that the suit under Order XXXVII, Rule 2 C.P.C. Becomes a normal suit after grant of leave to defend the suit and special provisions under Order XXXVII, Rule 4, C.P.C. Could not be applied to a normalsuit. In the present case, the defendant has been granted leave to appear and defend the suit and rest of the proceedings of suit were to be carried out under the relevant provisions of C.P.C.
14. In my opinion once the application for leave to defend the suit is accepted and issues were framed, then the procedure provided in Order XXXVII, Rule 4, C.P.C. Shall not be operative and in case of passing of ex parte judgment and decree on account of non-appearance of the defendant, the period of limitation for filing of an application for setting aside the judgment and decree would be governed by Article 164 of the Limitation Act, 1908 and the period provided in Article 164 of the Limitation Act is 30 days. According to section 5 of Limitation Act, the applicant has to show a sufficient cause for not preferring the application within the stipulated period. It is an established law that person seeking condonation of delay must explain delay of each and every day to the satisfaction of the Court and should also establish that the delay had been caused due to reasons beyond his control. In my opinion, the appellant has failed to give a sufficient cause for filing of an application for setting aside ex parte judgment and D decree dated 18-6-2011; and on account of this delay, a valuable right had accrued in favour of the respondent.
15. There is no cavil to this proposition that principal object behind all legal formalities is to safeguard the paramount interest of justice but it is equally important to bear in mind the well- known maxim that equity follows the law, a maxim acted upon by the Court of Chancery in England, on cases where the law clearly applies. It has to be given full effect howsoever harsh it might appear to be. Normally, however, legal technicalities should not be allowed to stand in the way of justice unless they present a hurdle brushing aside which might lead to unsettlement and uncertainty of law.
16. For what has been discussed above, this appeal is dismissed in limine.