FIDA HUSSAIN Versus MUHAMMAD ISHAQUE
ALI BAIG, J.--- This Civil Misc. petition has been preferred against the impugned judgment/order dated 24-9-2014 passed by a Division Bench of this Court whereby the honourable Division Bench of this Court has decreed the suit of the plaintiff/present respondent in his favour and against the present petitioner/defendant.
2. Succinctly facts of the case giving rising to the filing of this petition are that the respondent/plaintiff instituted a suit under Order XXXVII, rule 2, C.P.C. for recovery of Rs. 1100,000/- with 14% interest from 15-8-2008 till realization of the suit amount against the present petitioner/defendant in this Court claiming that the parties are in friendly terms inter se and were running common business of import and export. Accordingly on the request of the petitioner/defendant the plaintiff/respondent had given loan of suit amount to the dependent/petitioner on the condition for re-payment of suit amount within a year. In the year 2008 the present petitioner/defendant handed over a cheque bearing 0786555 dated 15-8-2008 payable on 02-12-2008 against his PLS A/C No. 0000059758. On presentation of the aforesaid cheque before the concerned Bank, the concerned Bank instead of encashment of amount returned the same with the remarks thereon "insufficient funds". The plaintiff/respondent informed the defendant/petitioner about the dishonor of the aforesaid cheque but the defendant/petitioner did not pay the amount to the plaintiff/present respondent. Accordingly the respondent/plaintiff instituted a suit against the present petitioner/defendant in this Court.
3. The present petitioner/defendant contested the suit by filing of written statement in this Court wherein he has denied the claim of the present respondent/plaintiff.
4. Out of divergent pleadings of parties this Court has framed 5 issues including issue of relief.
5. During pendency of suit the present petitioner/defendant remained absent and accordingly he was proceeded ex parte by a Division Bench of this Court and after evaluating the available evidence of the parties this Court has decreed the suit ex-parte in favour of the plaintiff/present respondent vide impugned judgment/decree dated 24/9/2014, hence, this petition.
6. The learned Counsel appearing on behalf of the petitioner contended that the impugned order/judgment passed by this Court is contrary to law and facts on the record of the case as such the impugned order/judgment of this Court is not maintainable and liable to be set aside. The learned counsel for the petitioner further argued that the petitioner was not aware regarding passing of Orders dated 28-8-2013 and 13-8-2014 due to lack of the communication of the petitioner with his counsel and no any notice was issued to the petitioner/defendant by this Court. The learned Counsel for the petitioner further argued that the petitioner was condemned unheard and no opportunity was given to the petitioner/defendant to explain his position, hence the impugned ex-parte judgment/decree passed by this Court is not tenable and liable to be set aside.
7. On the other hand the learned counsel appearing on behalf of the respondent/plaintiff controverted the arguments advanced by the learned Counsel for the petitioner by contending that the petition of the petitioner filed under Order XXXVII, rule 4, C.P.C. is hopelessly time barred as the impugned judgment/decree was passed on 24-9-2014 and petition under Order XXXVII, rule 4, C.P.C. was filed in this Court on 04-12-2014. The learned counsel for the respondent further argued that on the admission of the defendant/petitioner this Court had passed preliminary decree for payment of an amount amounting to Rs. 422000/- in favour of the present respondent/plaintiff and against the present petitioner/defendant which has attained finality and the petitioner has failed to deposit the decretal amount amounting to Rs. 422000/- in compliance with order of this Court dated 28-8-2013, hence, the petitioner has not filed the instant petition with clean hands as such the present petition of the petitioner is not maintainable and liable to be dismissed.
8. We have heard the learned Counsel for the parties and perused the record with their able assistance.
9. From perusal of record in shows that on the admission of the defendant in Para No.4 of his written statement, preliminary decree amounting to Rs. 422000/- was passed in favour of the present respondent/plaintiff and against the present petitioner/defendant in presence of his counsel Mr. Shahid Abbas Advocate vide order-sheet 28-08-2013 maintained by this Court and counsel for the petitioner/ defendant was directed to produce the defendant in person and to deposit the amount of preliminary decree amounting to Rs. 422000/- in the Court but the petitioner/defendant has neither challenged the afore said order/decree of this Court in any higher forum nor has he deposited the decretal amount in this Court, hence the petitioner/defendant has not come in the Court with clean hands.
10. Moreover, the impugned judgment was passed by this Court on 24-9-2014 and the instant petition has been filed in this Court on 04-12-2014 after lapse of two months and ten days after passing of the impugned judgment/decree, whereas Article 164 of the Limitation Act provides 30 days time to the petitioner/defendant to file petition for setting aside ex-parte decree and these 30 days are started from the date of the decree in the instant case as the petitioner/defendant has participated in the proceedings before this Court because he has filed written statement and proposed issues in this Court, hence the instant petition is hopelessly time barred. Even the petitioner/defendant has not bothered to file an application under section 5 of the Limitation Act for condonation of delay in filing of the instant petition. In this connection we are fortified by the reported judgment of the Honorable Supreme Court of Pakistan reported in 2006 SCMR 630.
11. Furthermore, the respondent/ plaintiff has also proved his case by adducing reliable oral and documentary evidence i.e bounced cheque Ex.P-1 and statement of concerned Bank. Exh P/2.
12. For the foregoing reasons we are of the firmed view that the petitioner has failed to point any infirmity or illegality in the impugned order passed by a Division Bench of this Court. Consequently this petition having no substance is hereby dismissed and impugned judgment/decree dated 24-9-2014 passed by a Division Bench of this Court is maintained. File.
SA/14/GB Petition dismissed.