1. ' Respondent brought a civil suit in summary jurisdiction under Order XXXVII, Civil P.C. Against Mian Muhammad Yasin petitioner for recovery of Rs,23836.25 on the basis of a Promissory Note guaranteeing repayment of the loan. Suit was instituted in the Court of District Judge, Lahore. It was entrusted for trial to a Civil Judge, Ist Class. Upon being served he appeared in Court through an Advocate, petitioner did not apply for leave to appear and defend the suit in time. Consequently, on 13-10-1980, the trial Court struck off his defence and adjourned the suit to 18-10-1980 for recording of respondent's proof. On 18-10-1980, counsel for the respondent produced documentary evidence marked Exhts. P-1 to P-4 and closed the case. Upon the material brought on record, the trial Court decreed the suit with costs in favour of the respondent on the same day. It may be observed that on this date of hearing, the Advocate representing the petitioner was also marked present. On 23-1-1982, petitioner applied for setting aside of the decree passed against him on 18- 10-1980. Respondent contested the application. On 3-1-1983, application was dismissed on merits, by the trial Court. Appeal filed against the decision also failed. Thereafter, an objection petition under section 47, read with section 12 (2) Civil Procedure Code was filed by the petitioner for setting aside of the decree dated 18-104980. It was dismissed by the trial Court on 10-10-1983. Yet another application under Order XXXVII rule 4 Civil Procedure Code was filed by the petitioner. It was also dismissed on 8-12-1983 by the trial Court holding that it was barred by resjudicata. Against the orders dated 10-10-1983 and 8-12-1983, a single appeal was filed in the Court of learned District Judge, Lahore. It came to be heard by a learned Additional District Judge of that district who by the impugned order dated 1-4-1985, dismissed the appeal. Against his decision, a petition in revision has been filed in this Court. It Was admitted on 10-7-1985 and execution of impugned money decree was suspended.
2. ' Learned counsel for the parties have been heard. With their assistance, original record has also been looked into. Main burden of the arguments advanced by the learned counsel for the petitioner was that an official in the Bank committed fraud upon the petitioner and misappropriated a substantial portion of the loan amount by which the petitioner stood deprived of the benefit of loan amount and therefore, could not be held liable for its repayment. This is hardly a `special' circumstances envisaged in rule 4 of Order XXXVII Civil Procedure Code for recalling of the Court decree. There is no dispute that petitioner was served in the suit filed against him by the respondent. He entered appearance in the suit through an Advocate engaged for the purpose. Power of Attorney A executed in favour of the defendant is available on the trial Court's file. Despite that for reasons best known to him, the petitioner did not choose to file an application for leave to appear and defend the suit within the time. Consequently, the trial Court struck off his defence and instead of passing of a decree forthwith on the allegations in the plaint which shall be deemed to have been admitted in his default, it took evidence from the respondent-Bank and upon being satisfied passed judgment against the petitioner. It may be observed that the learned Advocate appearing for the petitioner in the trial court was marked present even on the date of issue of decree by the trial Court. Upon this view of the record, petitioner could be safely fixed with the knowledge of the proceedings in the suit and the decree against him. Despite that circumstance an application for setting aside of the decree was delayed much. There is no plausible explanation for delaying that action. As observed above, application for setting aside of the trial Court decree dated 18-10-1980, was dismissed and appeal filed against it also failed.
3. Application filed under section 12 (2), C.P.C. Also failed. There is no doubt, that original decree was appealable but no appeal was filed against it. Be that as it may, Rule 4 in Order XXXII, C.P.C.
4. Empowered the Court to set aside the decree under 'special' circumstances and if necessary stay or set aside execution may even give leave to appear and defend the suit but that can take place only if 'special' circumstances are shown to exist. What are those 'special' circumstances, has neither been defined in Order XXXVII, Civil Procedure Code nor elsewhere. Obviously, those are not synonymous with 'sufficient cause'. Term `special' in Webster's new International Dictionary (second edition) is defined as distinguished by some unusual quality; uncommon; noteworthy; extraordinary; as, a special occasion; especially, distinguished by superior excellence, importance, power, or the like. In the Shorter Oxford English Dictionary on Historical Principles, term 'special' is defined as of such a kind as to exceed or excel in some way that which is usual or common; exceptional in character, quality, or degree. The Concise Oxford English Dictionary says that 'special' means of a particular kind, peculiar in general. Therefore, under rule 4, C.P.C. The defendant is obliged to explain the 'special' circumstances which prevented him from appearing in the Court to seek leave to appear and defend the suit within time or other 'special' circumstances which may authorize the Court to set aside the decree already passed by it. Rule 4, C.P.C. Is intended to prevent inujstice. In the instant case, no `special' circumstances have been shown for entitling the petitioner to claim benefit of rule 4, C.P.C. Facts in the case depict it as a clear case of sheer negligence in the conduct of the defence. It is seen from the record that the petitioner was served by the process of the Court in specified form. Thereupon, he engaged the services of an Advocate, and, filed his power of attorney in Court and appeared also. To say that petitioner was not served in the suit is neither here nor there. It is clearly a false statement. Power of attorney present on the trial Court's file bears his signatures which closely resemble with his admitted signatures. Even otherwise, it is not believable that an Advocate without authority shall enter appearance in a proceedings before a Court of law. When the petitioner had engaged an Advocate who had appeared in Court also, there was no reason whatsoever for not filing of the necessary application for leave to appear and defend the suit. From the record, it could be clearly inferred that the petitioner wilfully avoided to apply for leave to appear and defend the suit with the sole object to put off dooms-day as far as he could and as the subsequent events would show in that he succeeded to some extent. Upon above view, impugned judgment is correct and there is no room to cause interference' with it. Civil revision is, accordingly, dismissed with costs.