C.M. No.395-C of 2020 This application seeks an interim relief.
2. It is noticed that main petition is still at pre-admission stage and has yet not been placed before the Court and is awaiting any formal order . Office to put up main petition alongwith all pending C.Ms. for today .
Main Petition This petition under Section 115 of the Code of Civil Procedure (V of 1908) (herein after referred as "CPC") calls in question the order dated 13th March, 2020, whereby the learned Additional District Judge, Rawalpindi proceeded to dismiss a petition under Order XXXVII Rule 4 of "CPC" moved by the petitioner seeking setting aside of ex-parte proceedings order dated 21st June, 2017 and ex-parte judgment and decree dated 02" May , 2018.
2. Briefly stated facts necessary for adjudication of instant petition are that the respondent instituted a suit under Order XXXVII of "CPC" seeking recovery of an amount of Rs.1,05,00,000/- on the basis of two cheques purportedly issued by the petitioner . The petitioner was proceeded ex-parte and ultimately suit was decreed vide judgment dated 02nd May, 2018. The petitioner then moved a petition under Order XXXVII Rule 4 of "CPC" seeking setting aside of ex parte proceedings order as well as decree. The application was resisted by the respondent and finally it was dismissed vide order dated 13th March, 2020, which is now impugned in the instant petition.
3. Learned counsel for the petitioner submitted that on account of unavoidable circumstances faced by the petitioner , he was unable to appear before the learned trial court and as such he was initially proceeded ex-parte but later on suit was also decreed. It is contended that law favours the adjudication on merits but the petitioner has been knocked out on the basis of technicalities. Learned counsel submitted that ex-parte judgment and decree is not sustainable under the law .
4. I have heard learned counsel for the petitioner at considerable length and also perused the record.
5. Suit was instituted by the respondent on the basis of two cheques purportedly issued by the petitioner for the discharge of financial liability . A criminal case to this effect was also registered in the shape of FIR No.107 dated 06th February , 2016 at Police Station New Town Rawalpindi. The petitioner being one of the defendants in the suit entered his appearance and moved an application seeking leave to appear and to defend the suit. Leave was granted conditionally vide order dated 13th October , 2016 subject to submission of surety amount equivalent to principal amount. The petitioner did not furnish surety bond within the stipulated period and instead file a review application before the learned trial court, which was dismissed vide order dated 08th December , 2016. This followed a revision petition before this Court (Civil Revision No.1328 of 2016) which was finally dismissed for want of prosecution on 15th November , 2018. It is evident therefrom that even the condition imposed by this Court in the initial order was not fulfilled by the petitioner . The petitioner , however , in the meanwhile was allowed by the learned trial court to submit written statement subject to costs of Rs.500/- in pursuance to the order dated 15th December , 2016 passed by this Court in Civil Revisio n No.1328 of 2016. During the proceedings before the learned trial court the petitioner opted not to appear and he was thus proceeded ex-parte on 21st June, 2017. The petitioner then moved an application seeking setting aside of ex-parte proceeding order but he again disappeared from the court as a result his application was dismissed for want of prosecution vide order dated 13th March, 2018. Thereafter ex- parte evidence of the respondent was recorded, which followed an ex-parte judgment and decree dated 02nd May, 2018. The petitioner after passing of the ex-parte judgment and decree moved a petition under Order XXXVII Rule 4 of "CPC", which was resisted by the respondent and ultimately it was dismissed through order dated 13'h March, 2020.
6. There is no cavil that law favours the adjudication on merits but at the same time it is bounden duty of every litigant to remain vigilant in prosecuting his cause. In the background of the above mentioned facts, it can safely be inferred that the petitioner has never remained serious in prosecuting his cause. He employed all possible means to thwart the process of law and to linger on the proceedings on one pretext or the other . Order XXXVII of "CPC" provides a summary procedure for the trial of suit instituted on the basis of nego tiable instruments. An ex-parte judgment and decree though can be set aside in terms of Rule 4 of Order XXXVII of "CPC" but such powers can only be exercised under special circumstances. Order XXXVII Rule 4 of "CPC" is reproduced below for ready reference and convenience :- "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."
After having an analysis of Order XXXVII Rule 4 of "CPC" it can safely be inferred that the petitioner has badly failed to show special circumstances, justifying his absence from the court. The reasons assigned in the application for the absence were even lacking any supporting material. The court cannot permit a litigant to dictate his terms and to regulate the procedure. When the conduct of the party is contemptuous and it is evident from the record that he is adamant to abuse the process of law, law cannot come to his rescue. The petition under Order XXXVII Rule 4 of "CPC" was clearly a belated one.
7. In an ordinary suit if the defendant is proceeded ex parte and finally suit has been decreed as ex-parte, the defendant has a right to move to the court for setting aside of ex-parte decree under Order IX Rule 13 of "CPC" but in a suit of summary character like the present one, he has to move in terms of Order XXXVII Rule 4 of the Code ibid. The requirements for setting aside of ex-parte decree in both the provisions are quite different and distinct. In the latter case a litigant has to show some special circumstances warranting setting aside of the decree. The term "special circumstances" is stricter than the term "good cause or sufficient cause". Both the provisions are neither synonymous nor interlinked. Guidance in this respect can be sought from "JAVED HUSSAIN ANSARI versus MUHAMMAD AYAZ KHAN" (2005 SCMR 1655 ) and "SHAHID PERV AIZ alias SHAHID HAMEED versus MUHAMMAD AHMAD AMEEN" ( 2006 SCMR 631 ).
8. This Court while exercising revisional powers has to keep in mind the mandate of Section 115 of "CPC". Powers of revision is neither unbridled nor unlimited. Before invoking such power it should be seen as to whether order or judgment under scrutiny is illegal, unlawful or suffers with material irregularities contemplated under Section 115 of "CPC". The petitioner has failed to bring his case within the four corners of pre-conditions hedged in Section 115 of "CPC", so exercise of revisional jurisdictio n in absence of any material illegality or irregularity would not be safe for the purposes of administration of justice. Guidance in this respect can be sought from "BASHIR AHMED versus Mst. TAJA BEGUM and others" (PLD 2010 Supreme Court 906) wherein the august Supreme Court of Pakistan held as under :- "7. At this point, we may note that first and second appeals are available (whereve r provided by law) as of right. In the present case, a second appeal was not available to the petitioner . He, therefore, invoked the revisional jurisdiction of the High Court under section 115, C.P.C. This jurisdiction is, in material respects, even more restricted than the appellate jurisdiction under section 100, C.P.C., because a judgment can be assailed through a revision petition only where it suffers from a jurisdictional error of the nature set out in clauses (a), (b) and (c) of section 1 15, C.P .C.
8. As opposed to first and second appea ls, provided for in sections 96 and 100, respectively of the C.P.C., the provisions of Article 185(3) of the Constitution do not confer any right on an unsuccessful litigant, to prefer an appeal to this Court. He must seek leave to appeal, and in order to be granted such leave, a petitioner under Article 185(3) ibid, is obliged to show something at least equivalent to if not more stringent than what is required by section 100 or 115, C.P.C. It is this requirement which lays down the minimum standard and sets the bar for granting leave to appeal under Article 185(3) ibid. In the context of the present case, we would like to examine the criteria for determining whether leave to appeal should or should not be granted. This necessarily will have to be determined in the light of the facts and circumstances of this petition and, therefore, exhaustive rules of universal application may neither be appropriate nor possible.
9. Guidance in laying down criteria for grant of leave to appeal, can, however , be taken from the provisions of section 96 and section 100 of the Code of Civil Procedure. One rule which can be safely laid down is that in order to be granted leave to appeal under Articl e 185(3) of the Constitution, at the very least, the petitioner should satisfy the requirements of section 100, C.P.C. In the present case, it is quite obvious to us that the decisions of the learned Courts below are neither contrary to law nor any usage having the force of law. Likewise, we have not been shown that the impugned judgments have omitted to decide ''some material issue of law or usage having the force of law." We may note at this stage, that not all instances of a Court's failure to decide an issue will suffer for the purpose of allowing an appeal. It is only a failure to decide material issues which will enable an aggrieved party to invoke the jurisdiction of an appellate Court. The question of materiality , that is, whether or not an issue is of a material nature, will depend upon whether the ultimate decision of the Court of first appeal would have been different, if the omitted issued had been determined by it. Thus, in order to succeed in second appeal on ground (b) of subsection (1) of section 100, C.P.C., an appellant would have to show that the Court of first appeal would have reached a dif ferent conclusion, had it not failed to decide the issue of law or usage specified in ground (b) ibid.
10. We now take up for consideration ground (c) given in sub-section (1) of section 100, C.P.C. This provision requires an appeal, to show firstly that there has been a substantial error or defect in procedure and secondly that such a substantial error could have resulted in an erroneous or defective decision of the case. Illustrations to highlight such substantial errors are not hard to find. However , no such substantial error arises from the judgments assailed before us."
The same view was also reiterated by the Hon'ble Apex Court in the case of IQBAL AHMED versus MANAGING DIRECT OR PROVINCIAL URBAN DEVE LOPMENT BOARD, N-W. F. P. PESHA WAR and others" (2015 SCMR 799).
9. For the foregoing reasons, instant petition fails and is accordingly dismissed in Iimine. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.