SARMAD JALAL OSMANY, J.---This Petition impugns the Judgment of the learned sindh High Court (Karachi) in 1st Appeal No. 17 of 2012 filed by the Petitioner whereby same was dismissed.
2. Briefly stated the facts of the matter are that the Respondent had filed a summary suit against the Petitioner under Order XXXVIL, CPC for recovery of Rs: 52,020,13.51 on the basis of four cheques amounting to Rs. 7,00,000/- issued by the Petitioner in his favor which had been nourished. The Petitioner in pursuance of notice appeared before the learned Trial Court and moved an application seeking two weeks' time to prepare her case on the ground that her lawyer was out of city. Thereafter she filed an application for leave to defend the suit which was dismissed by the Learned Trial Court on the ground that it was barred by limitation not having been filed within ten days of service as per the requirement of law. Consequently the suit was decreed for a sum of Rs.
700,000/- along with mark-up @ 6% per annul from the date of filing of the suit till recovery. As noted above the learned High Court dismissed the Appeal filed by the Petitioner and hence this Petition.
3. Syed Ansar 'Hussain, learned ASC appearing for the Petitioner has submitted that the Petitioner was served on 06.09.2011 for appearance before the learned Trial Court for 08.09.2011 when she did and moved an application for two weeks' time as her counsel was out of city and the same was granted by the learned Trial Court unto 23.09.2011. However when she filed an application for leave to defend on 20.09.2011, the learned Trial Court held it was beyond time. Per learned ASC once the learned Trial Court had granted time for filing the leave to defend application and the same was filed within time, then it could not be dismissed as being time-barred. Furthermore only photocopies of the cheques in question were filed by the Respondent and 'consequently the .Suit could not be decreed on the basis of the same as nothing has been brought on the record so as to establish whether the originals were lost or otherwise not in control of the Respondent. Learned ASC has also submitted that Petitioner was the client of the Respondent and during such relationship the 'cheques had been given in good faith for the purpose of securing some transaction between them, the details of which are available in the application for leave to defend and cones eloquently the learned Trial Court erred while not keeping this fact in mind while decreeing the 'suit.
4. On the other hand the Respondent, who appears in person, submitted that according. To Article 159 of the First Schedule to the Limitation Act, the period prescribed for filing the leave to defend application in a summary suit is ten days from the date when the summon is served and such had been stated on the summon itself, a copy of which is placed on the ,.Reorder. Hence the petitioner was very Much in the knowledge of the fact that she had ten days from 6.9.2011 for the purpose of filing the leave to defend application which she failed to do and consequently the suit had been correctly decreed under "Order XXXVII, Rule. 3, CPC, which clearly provides that upon failure of the defendant to obtain leave, the allegations in the plaint would be deemed to be admitted and the plaintiff would be entitled to a decree. It is further submitted that the application submitted by the Petitioner on 8.9.2011 was only to prepare the case and not for the purpose of filing the lea veto defend application, time for which in any event could not be extended as ten days had been prescribed by law viz Article of the First Schedule of the Limitation Act. In. Support of his submission the Respondent has cited undo Male and others v. Daulat Ram-Vidya Parkash, Firm (AIR 1940 Lahore 75), Bakhtiar Ahmed v. Mst. Shamim Akhtar and others (NLR 2013 Civil 1), M. Imatn-ud-Din Janjua v. The That Development Authority (1972 Law Notes 12) and The Provincial Industrial Development corporation West Pakistan v. Messrs Sheikh Muhammad Amin and Co. (1972 Law Notes 83).
5. We have heard the learned ASC as well as the Respondent, who appears. In person, and perused the record along with their assistance.
6. It is admitted before us that indeed the Petitioner was served on 6:9.2011 where-after she appeared on 8.9.2011 and moved an application for two weeks' time for the purpose of preparing her case as her counsel was out of city. The Respondent gave his no objection to the said application provided interim relief is granted. However no such condition was attached by the learned Trial Court in granting the said application as the learned Judge lust wrote upon the same "time allowed." Thereafter the leave to defend application wa filed on 20.9.2011 but vide impugned judgment it was dismissed on the ground of limitation i.e. Being beyonr; Len days of service and the suit decreed. Although it is'a trite law that a Court cannot enlarge the period of limitation as there is no estoppel against the stattife as held in the cases cited by the Respondent (Supra). However it is equally well-settled that an act of the Court cannot prejudice anyone especially a lay person. In our opinion the Petitioner genuinely moved an application for adjournment on the ground that her lawyer was out of city and obtained two weeks' time for the purpose of preparing her defence and she did tile the leave to defend application within such time. Consequently the same could not be dismissed as being beyond _time as she was entitled to presume being a lay person that the Court had given her time for this purpose.
7. For the foregoing reasons we had while converting this Petition into an the same and remanded the matter back to the learned Trial Court for adjudication of the Petitioner's leave to defend application on merits.
Leave Petition Converted into Appeal, and Case Remanded to Trial Court.