UBAID-UR-REHMAN vs SALAMAT ALI SHAH
This civil revision petition challenges an order passed by the Additional District Judge, Faisalabad, which dismissed the petitioner's review application regarding a suit for recovery. The respondent had filed a suit under Order XXXVII, Code of Civil Procedure 1908, based on a promissory note. The trial court granted the petitioner conditional leave to defend, requiring the furnishing of security, which the petitioner failed to provide. Consequently, the trial court dismissed the application for leave to defend and decreed the suit. The petitioner sought review of this decree, which was subsequently dismissed. The core legal question was whether the review application was competent and whether the trial court's dismissal of the leave to defend for non-compliance with security requirements was legally sound. The Court held that the trial court's order was correct, as the record showed the petitioner's counsel was present when the order was passed, and no valid justification for non-compliance was provided. Furthermore, the Court affirmed that the parameters for review under Order XLVII, Code of Civil Procedure 1908 were not met, and the petition was dismissed in limine.
- Is a review application competent against a decree passed due to non-compliance with a conditional order for leave to defend?
- Can a party seek review of a decree based on the alleged absence of counsel when the record indicates the counsel was present?
- Does the failure to furnish security as ordered in a summary suit justify the dismissal of an application for leave to defend?
- Order XXXVII Rule 2, Code of Civil Procedure 1908
- Order XLVII, Code of Civil Procedure 1908
ORDER
' SYED ASGHAR HAIDER, J.---This petition is directed against order, dated 15-7-2006, passed by the Additional District Judge, Faisalabad, whereby the review application filed by the petitioner was dismissed.
2. Respondent/plaintiff filed a suit for recovery under Order XXXVII Rule 2, C.P.C. For Rs,3,70,350 on the basis of promissory note, leave was granted conditionally to the defendant, he was directed to furnish security in the sum of Rs,4 lac till 18-5-2005, the defendant/petitioner did not comply with this order resultantly, vide order, dated 18-5-2005, his application for leave to appear and defend the suit was dismissed and the suit was decreed for Rs,3,70,450 with costs. Aggrieved thereof the petitioner filed a review petition which too was dismissed on 15-7-2006, hence the present petition.
3. Learned counsel for the petitioner contended that technicalities cannot be permitted to stifle justice and the petitioner has been knocked out on a technicality, thus, the suit has not been adjudicated and decided on merits, counsel for the petitioner, because of professional engagements could not appear and for this reason security could not be furnished as ordered, he prayed that the order be set aside even subject to payment of costs and the suit be adjudicated and decided on merits, relied on Sh. Inayatuallah v. Mian Abbas Ahmad Khan and another (1970 SCM R 130).
4. Learned counsel for the respondent vigorously defended the impugned order, he submitted that the order, dated 18-5-2005, dismissing the application for leave to appear and defend, and decree in suit, was passed in presence of the counsel for the parties, the omission of non-furnishing of security as directed was meant only to protract and prolong the proceedings, no appeal was filed and review application in these circumstances was not competent. He relied on Murtaza Haseeb Textile Mills v. Sitara Chemical Industries (2004 SCM R 882) and Messrs Long Life Builders, Karachi v.
Syed Nisar Ahmad (PLD 1996 Karachi, 423.
5. I have heard the learned counsel for the parties and perused the impugned order. Learned counsel for the petitioner submitted that order, dated 18-5-2005, was passed in his absence and as such the direction quasecurity could not be fulfilled, this amounted to being condemned unheard. The position is not supported by record, order, dated 18-5-2005, was passed in presence of the learned counsel the record so reflects, therefore, the basis for seeking indulgence is incorrect and based upon misreading of record. Leave was refused for non-compliance of order, dated 28- 4-2005, passed by the trial Court, directing the petitioner to furnish security, which was not complied with, no convincing reason for non-compliance has been made out even today. In these circumstances the order, dated 18-5-2005, is correct and in accordance with law. Reliance placed by the learned counsel on Murtaza Haseeb Textile Mills v. Sitara Chemical Industries (2004 SCM R 882) is fully applicable in these circumstances. Further the judgment and decree was not impugned through any appeal and only a review application was filed, even the review application was not diligently prosecuted and resultantly, was dismissed on 15-7-2006, for non-prosecution.
The parameters of review have been set in Order XLVII, C.P.C., they are not attracted to the present matter, and therefore, the matter warrants no interference. The precedent cited by the learned counsel for the petitioner is distinguishable on facts. Resultantly, this petition warrants no interference and is thus, dismissed in limine.
Revision .