ABDUL HAMEED BALOCH, J.----The petitioners questioned ex-parte judgment and decree dated 2nd April, 2019 (impugned judgment and decree) passed by learned Additional District Judge-II, Quetta; whereby the suit was ex- parte decreed and order dated 20th August, 2020 (impugned order) passed by learned Additional District Judge-IX, Quetta (trial court), whereby the applicati on filed by the petitioner under Section 12(2), C.P.C., for recalling of ex- parte judgment and decree dated 2nd April, 2019 was dismissed.
2. Concise facts of the case are that the respondent No.1/plaintif f filed a suit unde r Order XXXVII, Rule 2, C.P.C., for recovery of Rs.14,70,000/- against the petitioner/defendant No.1 and respondent/ defendant No. 2 before learned Additional District Judge-II, Quetta, in which the petitioner/ defendant No. 1 and respondent/ defendant No. 2 appeared and filed separate applicatio ns for leave to defend the suit which were allowed subject to furnishing surety of equivalent amount vide order dated 1st March, 2019, but after obtaining leave to defend the suit neither the petitioner/ defendant No.1, respondent/ defendant No.2, nor their counsel appeared and remained absent, as such in the circumstances the learned Additional District Judge-II, Quetta passed ex-parte judgment and decree dated 2nd April, 2019.
3. After passing ex-parte judgment and decree, on 20th February , 2020 the petitioner/ defendant No.1 filed an application under Section 12(2), C.P.C. for recalling of ex-parte judgment and decree dated 21st April, 2019, but the learned trial court vide order dated 20th August, 2020 dismissed the application, hence the petitioner/ defendant No.1 is before this court.
4. The learned counsel for the petitioner/ defendant No. 1 contended that the petitioner/defendant No.1 filed application for leave to defend which was allowed conditionally subject to furnishing surety . Due to non-submission of surety by the petitioner/ defendant No. 1 the learned trial court passed ex- parte judgment and decree, whereafter , the petitioner/ defendant No. 1 filed an application under Section 12(2), C.P.C., for setting aside ex- parte judgment and decree which was rejected. The learned counsel further contended that under Order XXXVII, Rule 4, C.P.C., no period of limitation has been provided for setting aside ex-parte judgment. Where the specific period is not provided then the period provided in residuary Article could be attracted. The learned counsel further stated that this court in revisional jurisdiction has supervisory power . Mere questioning of wrong section does not be a ground for non-suiting a party . This court under supervisory jurisdiction can treat the application under Section 12(2), C.P.C. to Order XXXVII, Rule 4, C.P.C. Where the valuable right is involved it is better to decide the matter on merit. The learned counsel placed reliance on Fateh Muhammad Naeem v. Mst. Imam Sain, 2006 YLR 1126, Hassan Din v. Jalal Din 1992 CLC 33, Tariq Jamil Bangash v Attaullah Khan Khattak, 2015 MLD 343, Registrar , High Court of Balochistan v. Abdul Majeed, PLD 2013 [Balochistan] 26 and Rashida v Ghous-ud- Din, 2016 CLC 533 .
5. Conversely the learned counsel for the respondent No.1/ plaintif f stated that the judgment of the trial court could not be said ex-parte judgment. The petitioner appeared before the trial court, filed application for leave to defend which was allowed, but subsequently failed to appear . On filing execution the petitioner appeared before the trial court and filed application for setting aside ex-parte judgment and decree dated 2nd April, 2019 after ten months without filing application for condonation of delay . The order of the trial court is well reasoned and in accordance with law . The learned counsel placed reliance on Muhammad Iqbal v . Muhammad Asim, 2005 CLC 1279 .
6. Heard and perused the record with the assistance of learned counsel for the parties. The record reveals that the respondent No. 1/ plaintif f filed a suit under Order XXXVII, Rule 2, C.P.C. for recovery of Rs. 14,70,000/- before learned Additional District Judge-II, Quetta. The petitioner/ defendant No. 1 appear ed and filed application for leave to defend. The application was allowed on 1st March, 2019 with direction to submit surety , but subsequently the petitioner/ defendant No.1 remained absent. The trial court proceeded the suit ex-parte vide ex-parte judgment and decree dated 2nd April, 2019 and decreed the suit of the respondent No. 1/ plaintif f. The petitioner/ defendant No.1 filed an application under Section 12(2), C.P.C. for setting aside the ex-parte judgment and decree dated 2nd April, 2019, which was dismissed vide order dated 20th August, 2020 being barred by time. It would be appropriate to reproduce Rule 4 of Order XXXVII, C.P .C. for ready reference: "Order XXXVII, Rule 4, C.P.C.: 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."
7. Order XXXVII, Rule 4, C.P.C. confers power on the court to set aside the decree under special circumstances and give leave to the defendant to appea r and defend the suit. Rule 4 of referred Order deals where the defendant failed to appear and file application for leave to defend. The Honorable Supreme court of Pakistan in case Haji Ali Khan and Company v . Allied Bank of Pakistan PLD 1995 SC 362 held: "6. It will not be out of context to observe that generally above Rule 4 will cover a case in which a defendant for sufficient cause has failed to appear and to file an application for leave to defend within the prescribed period."
8. Under Rule 4 of Order XXXVII, C.P.C. the word used "under special circumstances " the court can set aside the decree. Rule 4 of the referred Order is subject to the condition there must be spec ial circumstances to support any application for setting aside decree. The referred Rule has three separate parts. The opening sentence state that after decree is passed under special circumstances the court can set it aside. The court can exercised the power where special circumstances exist. From the plain reading of above Rule it exclude ordinary circumstance or circumstances which may happen every day. The heavy burden on defendant to show the circumstances had arisen due to which he has unable to appear . Reliance is placed on Allied Bank of Pakistan Ltd. v. V. C.
Khilnani, PLD 1984 [Karachi] 127 , in which it was held: "Now the question arises in which circumstances the decree can be set aside. This can be done only in "special circumstances" which have not been defined. However , the words "special circumstances" will restrict to a great extent the applicability of Rule 4. In this regard reference can be made to the provisions of Order IX, Rules 7. 9 and 13 which provide for setting aside the ex parte order/decree. Under Order IX, Rule 7 if a defendant appears and assigns "good cause" for his previous non-appearance he may be permitted to appear . Under Rule 9 ex parte order of dismissal of plaint can be set aside on "sufficient cause" being shown for non-ap pearance. Under Rule 13 again the same word "sufficient cause", have been used for setting aside an parte decree. Under Order XXXVII neither of these words have been used. The words used are "special circumstances" which seem to be different from "sufficient" or "good cause" and are comparatively narrower in their applicability . Special circumstances exclude ordinary circumstances or circumstances which may happen every day. They indicate such circumstances which may be rare, exceptional and are not of common occurrence. Therefore, heavy burden is cast on the defendant to show that circumstances had arisen which besides being good cause or sufficient cause were of special nature due to which he was unable to appear or fulfill the condition laid down in the order . Putting the defendant's case to test as required by Rule 4. I find that no special circumstance has been made out. The reason given is that before the order was passed the defendant had left for U.S.A. for medical treatment and returned back in July. The defendant was aware of the proceedings against him, he had appointed an Advocate for defen ding the suit, and the order was passed with the consent of both the Advocates. It was the duty of the defendant that he should have kept his Advocate informed of his address so that he could be communicated of the result of the proceedings. No such steps were taken and nothing has been shown on the record that the injury of the defendant No.1 was of such a nature that he had completely remained unconscious throughout and was not able to communicate to any one. It seems that the defendant had been in full senses and was able to give proper instructions even to his doctor . This is not a case that he was in coma throughout or in such mental imbalance which prevented him from giving instructions to his Advocate.
The other aspect of the case is that the other defendant has not even filed such an application. Further , the order sought to be set aside is a consent order and in the circumstances stated above it cannot be set aside without the consent of the other side. The application is dismissed."
9. The provision of Order XXXVII, Rule 4, C.P.C. takes out the provision of limitation with the power of the court of setting aside the decree. It lay down condition of showing of special circumstances for setting aside the decree.
Therefore, an application to be made under Article 181 of the Limitation Act, 1908 (Act, 1908) instead of Article 164 of the Act, 1908. In Binyameen Khalil's case 2014 CLC 105 it was held: "----It is important to note that no limitation has been provided for filing of an application under Order XXXVII, Rule 4 of the Code of Civil Procedure, 1908 therefore the matter would be governed by Article 181 of the Limit prescribes limitation of 3 years.----"
10. The record transpires that the trial court has accepted application of the petitioner/defendant No.1 for leave to defend, but failed to submit surety . Admittedly the petitioner/defendant No.1 did not avail the matter in leave which was granted by the trial court as he failed to furnish surety . In such situation the trial court has rightly passed a decree. Reliance is paced on Muhammad Iqbal PLJ 2005 [Lahore] 1404 , wherein it was observed: "3. Respondent's learned counsel h submitted that the suit could be decreed without recording e evidence because it was snot mandatory for the learned trial court to record the evidence when the defendant had defaulted till fulfill the condition for grant of leave to appear and defend the suit. He has referred to 2004 SCMR 1747 (Zubair Ahmed etc. v . Shahid Mirza etc)."
5. The first question can be replied when we take into consideration the provision of Order XXXVII, Rule 2(2) of the C.P.C. in which the words used are "in default of his obtaining such leave or of his appearance and defence in pursuance thereof, the allegations in the plaint shall be deemed to be admitted, and the plaintiff shall be entitled to a decree." Order XXXVII, Rule 2(2) of the C.P.C., noted above has envisaged two situations. One, when the defendant does not obtain leave, the other when has been granted leave, but commits default in pursuance thereof. In these two events, the allegations in the plaint are to be deemed admitted. In the instant case, the appellant was granted leave with consent of respondent/ plaintiff who had with open heart given a concession/ consent to the defendant to appear and defend the case subject to the furnishing of surety . The default has been committed by the appellant himself, so the appellant cannot be permitted to agitate that the allegations contained in the plaint are not liable to be admitted without evidence. Upon the commission of his default, he, in fact, has admitted the correctness of allegations asserted in the plaint and cannot complain any thing else. When default is committed, then the averments contained in the plaint can be admitted to be true and correct, and the learned Court can grant decree without recording evidence vide 1982 CLC 2114 (Iftikhar Ahmed v. Muhammad Yunus Khan ) and 1990 CLC 119 (Muhammad Aslam v. Falak Sher). In the above noted ruling it was held "or where defendant had committed default in defending suit in pursuance of leave to defend suit", the averments of the plaint could be treated true and correct, so it does not lie in the mouth of appellant, to challenge the validity of the judgment and decree on the basis of non-recording of evidence, because he himself has defaulted in furnishing surety bond and creating the entitlement of plaintiff/respondent to get the decree without any further proof of contest. So, appellant is not entitled to any concession in this court, as it would be tantamount to permitting him to get a decree set aside/reversed, without filing surety bonds, the pre-condition for grant of leave to appear ."
11. I agree with the contention of learned counsel for the petitioner that Article 164 of the Act 1908 is not applied for setting aside ex-parte judgment passed by the learned trial court, rather residuary Article 181 of the Act, 1908 is applicable which provides period of three years, but this does not mean that party is absolve from his/ their duty to explain the delay . Mere filing application, appeal within time does not ipso facto absolve the petitioner to explain ten months delay . The party to the suit must be vigilant. The indolent person must be suf fered.
12. There are no two opinions that this court while exercising revisional jurisdiction is empowered to convert one proceeding to another . Reliance is placed on Registrar , High Court of Balochistan v. Abdul Majeed, PLD 2013 [Balochistan] 26 and. Rashida v . Ghous-Ud-Din, 2416 CLC 533.
The other citation relied by the petitioner is distinguished.
In view of above the petition being devoid of any merit is hereby dismissed with no orders as to costs.