JAVED HUSSAIN ANSARI vs MUHAMMAD AYAZ KHAN
This petition challenged a Lahore High Court judgment dismissing a civil revision against the refusal to set aside a decree passed under the summary procedure of the Code of Civil Procedure 1908. The respondent had filed a suit for recovery of Rs. 10,000,000 based on a cheque issued by the petitioner pursuant to a sub-contract agreement. The petitioner's initial application for leave to appear and defend the suit was rejected, and a subsequent application under Order XXXVII, Rule 4, Code of Civil Procedure 1908 to set aside the decree was also dismissed. The core legal question was whether the petitioner demonstrated sufficient 'special circumstances' to warrant setting aside the decree under Order XXXVII, Rule 4. The Supreme Court held that the petitioner failed to establish such circumstances, noting that the issuance of the cheque constituted an admitted liability independent of the petitioner's separate contractual dealings with WAPDA. Consequently, the Court affirmed the dismissal of the petitioner's application, reinforcing that summary decrees cannot be set aside without meeting the strict threshold of special circumstances required by law.
- Can a decree passed under the summary procedure of the Code of Civil Procedure 1908 be set aside without showing special circumstances?
- Does a dispute regarding payment from a third party (WAPDA) constitute a valid defense against an admitted liability evidenced by a cheque in a sub-contract?
- Is an application under Order XXXVII, Rule 4, Code of Civil Procedure 1908 maintainable if the applicant fails to establish special circumstances for setting aside a decree?
- Order XXXVII Rule 4, Code of Civil Procedure 1908
' MUNIR A. SHEIKH, J.--- This petition is directed against judgment, dated 3-9-2002 of the Lahore High Court, Lahore, passed in Civil Revision No,1946 of 2002.
2. The respondent filed a suit for recovery of an amount of Rs,10, 000,000 based on a cheque issued by the petitioner in his favor. The case of the respondent was that he was awarded a contract by WAPDA which he further sub-contracted to the present petitioner. He had to complete the same till 30-6-2000 and as consideration the respondent was to receive fixed amount. According to the learned counsel for the petitioner the work was completed in time and no default was committed.
According to respondent this cheque in dispute was issued by the petitioner on 18-6-2001 for payment of Rs,10,000,000 as consideration of the aforesaid sub-contract.
3. The petitioner made an application under Order XXXVII, R.4, C.P.C. For grant of leave to appear and defend the suit which was rejected on merits through order, dated 17-11-2001. The petitioner did not assail the said order before higher forums but made an application under Order XXXVII, rule 4, C.P.C. From setting aside the decree and for grant of leave to appear and defend the suit which was dismissed through order, dated 9-8-2002 against which revision petition filed by the petitioner too was dismissed through the impugned judgment dated 3-9-2002 against which leave is sought.
4. Learned counsel for the petitioners submitted that the findings of the learned Judge of the High Court in the impugned judgment that application of the petitioner was not maintainable is not legally correct. Order XXXVII, rule 4, C.P.C., according to him, does not debar this Court to entertain application thereunder. Even if this argument is accepted we find that under Order XXXVII, rule 4, C.P.C. Decree once passed could be set aside on special circumstances to be shown which condition in this case has not been fulfilled. The petitioner accepted his liability to pay the fixed amount by issuing cheque and in the application it was stated that he had to make payment of this amount after recovery of the amount from WAPDA on completion of contract by him. The matter about payment of dues between the petitioner and WAPDA has no concern with the respondent-plaintiff as it was agreed that he would pay fixed amount as per agreement of sub- contract. It was rightly held that it was a case of admitted liability, therefore, once the application for grant of leave to appear and defend the suit was rejected, there was no special circumstance to entertain application under Order XXXVII, rule 4 C.P.C.
5. For the foregoing reasons, we do not find any merits in this petition which is dismissed accordingly and .
Cited by 2 cases
- Gul Baz Khan vs Muhammad Kamran 2021 CLC 538, 2020 LHC 1696
- ABDUL HAMEED vs MUHAMMAD GIYAS SAJID 2012 MLD 1736