FAROOQUE AHMED Versus RAZA MUHAMMAD

ORDER

1. ZIA PERWAZ, J.--- This revision application is directed against the impugned order of learned 3rd Additional District Judge, Sukkur dated 7-12-2006 in summary Suit No.10 of 2005 whereby the application for leave to defend in the summary suit filed under Order XXXVII was dismissed on the ground that while the defendant filed Vakalatnama on 24-3-2006 the application for leave to defend under Order XXXVII, Rule 3, C.P.C. was not filed within the prescribed period of ten days but after much delay on 8-5-2006. No application for condonation of delay was filed.

2. Contention of Mr. Ghulam Shabir Shar learned counsel for the applicant is that the applicant is resident of Sukkur, he has shifted to Karachi. The cheque was payable at Karachi and as such present Court has no jurisdiction. In support of his contentions he has also relied on certain receipts pertaining to payment of amount to the son of respondent Raza Muhammad, namely Muhammad Haneef. He further contended that the Court acted without jurisdiction, therefore, entire proceedings are vitiated and the delay was liable to be condoned. In this regard he has relied on case of Naziran Begum v. Saleh Muhammad 2002 SCMR 37 and other case-law but the same does not pertain to any matter involving a suit under Order XXXVII, C.P.C. regarding condonation of delay.

3. Mr. M.B. Khagaija learned counsel for the respondent has filed his Vakalatnama in the Court today. He referred to the title of the present Revision application wherein the address of defendant/applicant has been shown to be Shaikh Mohalla, Barrage Road Sukkur. In the affidavit filed in support of the application also the applicant has shown his address as Shaikh Mohalla, Barrage Road, Sukkur. No address of Karachi has been mentioned anywhere. He further contended that both the parties are resident of Sukkur. In fact another Suit bearing No.31 of 2006 was instituted before 2nd Senior Civil Judge Malir Karachi by the applicant which was rejected on the ground of jurisdiction that both the parties reside at Sukkur. In support of his contentions, learned counsel has placed reliance on the case of Messrs United Distributors Pakistan Limited v. Ahmad Zarie Services and another 1997 MLD 1835.

4. Heard learned counsel and perused the record. At the outset Mr. Shar was asked if the authority cited by him pertains to condonation of delay under S.5 involving application for such condonation has been moved for condonation of delay, he conceded that no application for condonation of delay was moved therefore, case-law cited by him is of no relevance. As reflected from the pleadings of the parties as well as affidavit filed by the applicant, he is resident of Sukkur, no address of Karachi has even been mentioned. Mere oral version of Mr. Ghualm Shabir Shar therefore cannot be considered. Admittedly, the suit was filed under Order XXXVII, C.P.C. upon the negotiable instruments and summons have been issued in Form No.4 Appendix B, the defendant is not entitled to appear or defend the suit as a matter of course unless he obtains leave from the Court so to appear and defend. In default of his obtaining such leave for his appearance and defence in pursuance thereof the allegations in the plaint shall be deemed to be admitted and the plaintiffs shall be entitled to decree. The advantage in adopting the procedure prescribed by Order XXXVII, C.P.C. is that the defendant is not as a matter of right entitled to appear or to defend, but if he desires to be heard he must apply to the Court for permission to appear and defend within ten days of service of summons as envisaged by Article 159 of the Limitation Act. Till such time as leave to defend is granted the defendants cannot even file interlocutory application in order to agitate the point of jurisdiction nor to question the transactions between the parties or to challenge validity and legal effect of the promissory note and issues can be decided at the trial after recording evidence after leave to defend is granted to the defendants on disclosing a sufficient cause, as has been held in case of Messrs United Distributors Pakistan Limited v. Ahmad Zarie Services and another (supra).

5. Accordingly, as no ground is made out, the present application being devoid of any merits is dismissed in limine.

6. H.B.T./F-1/K Petition dismissed.