1. ABDUL KADIR SHAIKH, J.--This is a petition for leave to appeal from the judgment of a Division Bench of Sind High Court dated 1-9-1986 dismissing petitioner's appeal against the judgment and decree dated 20-1-1986 passed by a Single Judge of the same High Court in Suit No.278/85 filed by Ghulam Nabi respondent against the petitioner. The suit was for specific performance of a contract in respect of immovable property and in the alternative for recovery of Rs.1,31,500/- as damages.
2. The facts relevant to the controversy before us are that after the suit was filed against him, petitioner entered appearance in the suit through his counsel on 7-8-1985 before the Additional Registrar (O.S) who granted 4 weeks time to him for filing written statement, and fixed the next hearing of the case for 29-9-1985. On the next date two weeks further time was granted to petitioner for filing written statement and the case was adjourned to 28-10-1985. When the case came up before the Additional Registrar on 28-10-1985 there was no appearance on behalf of the petitioner and the Additional Registrar therefore debarred the petitioner from filing the written statement and fixed the case for final disposal before the Court. When the case came up finally before a learned Single Judge on 20-1-1986, he recorded evidence of the plaintiff and allowed the learned counsel for the petitioner to cross-examine him and finally decreed the suit for refund of the amount of Rs.1,00,000/--with interest of Rs.31,500/- up to the date of the filing of the suit, and further interest at the rate of 14% from the date of decree, in addition to the cost of the suit.
3. Petitioner's appeal which was heard by a Division Bench of the High Court was dismissed, as stated earlier.
4. Mr. Abdul Hafeez Memon learned counsel appearing in support of the petitioner submits that the order of the Additional Registrar dated 28-10-1985 was passed on a totally erroneous assumption that 90 days as provided under Order VIII, rule 1 of the Civil Procedure Code had expired. Learned counsel further submits that the learned Judges in the High Court have failed to appreciate that since petitioner had already filed written statement on 3-11-1985 the case should not be heard ex parte against the petitioner. Learned counsel also submits that, in any case, there was no legal evidence on which the decree could have been passed by the learned Single Judge in plaintiff's favour. Learned counsel finally submits that the Court decree to the extent of interest of Rs.31,500 from the date of filing of the suit could not have been passed as it was not stipulated in the agreement between the parties that interest was to be charged on the alleged sum of Rs.1,00,000/- said to be paid under the agreement.
5. Even if for the sake of argument the first plea raised by the learned counsel that learned Registrar had passed the order dated 28-10-1985 on the wrong assumption that 90 days' period had already expired is accepted, then also it was for the petitioner to take steps for getting that order set aside but there is nothing on record to show that such a relief was sought by the petitioner. Learned counsel however submits that in the memorandum of appeal before the High Court against the judgment of the learned Single Judge it was mentioned that the learned counsel had made an oral prayer for adjournment which was .,not granted. This assertion in the memorandum of the appeal does not necessarily lead to the conclusion that the request made before the learned Single Judge for grant of adjournment was for the purpose of filing an application for setting aside the order of the Additional Registrar dated 28-10-1985 or even for grant of permission to defend the suit. In fact there is nothing in the impugned judgments that a request for grant of permission to defend the suit was made before the learned Single Judge. Since the petitioner stood debarred from filing written statement by the order of Additional Registrar dated 28-10-1985, the written statement filed by him on 3-11-1985 could not be taken into consideration. Both the first and the second submissions raised by the learned counsel therefore have no substance.
6. The third point raised by the learned counsel was canvassed before the learned Judge of the Division Bench and it has been rightly rejected. The last plea was neither raised before the learned Single Judge nor before the learned Judges of the Division Bench and the petitioner therefore cannot be allowed to raise it for the first time before this Court.
7. For these reasons the petition is dismissed.