Mian BASHIR AHMAD vs Rana MUHAMMAD ASHRAF
This matter arises from civil petitions filed against an interim order passed by the High Court in revision proceedings. The petitioner had instituted a recovery suit under summary procedure against the respondent, which was decreed ex parte. The executing court subsequently dismissed the respondent's applications for setting aside the ex parte decree, condonation of delay, and leave to appear and defend. The respondent challenged these dismissals through civil revisions before the High Court, which admitted the revisions to regular hearing and suspended the operation of the impugned order. The core legal question concerned the propriety of interfering with an interlocutory order of the High Court admitting a revision petition. The Supreme Court held that the impugned order being interlocutory in nature did not warrant interference under constitutional jurisdiction. The key principle laid down is that the Supreme Court will generally decline to interfere with interlocutory orders of the High Court passed in pending revision petitions where no grave miscarriage of justice or jurisdictional error is shown.
- Whether the Supreme Court will interfere with an interlocutory order of the High Court admitting a civil revision to regular hearing?
- Can an ex parte decree passed in a summary suit under Order XXXVII of the Code of Civil Procedure 1908 be set aside along with an application for leave to appear and defend?
- Does an interlocutory suspension order passed by the High Court in revision proceedings merit interference under Article 185(3) of the Constitution of Pakistan?
- Order XXXVII Rule 2, Code of Civil Procedure 1908
- Order XXXVII Rule 4, Code of Civil Procedure 1908
- Order IX Rule 13, Code of Civil Procedure 1908
- Section 151, Code of Civil Procedure 1908
- Order XXXIX Rules 1 and 2, Code of Civil Procedure 1908
- Section 5, Limitation Act 1908
- Order XXXVII Rule 3, Code of Civil Procedure 1908
- Article 185(3), Constitution of Islamic Republic of Pakistan 1973
' MIAN MUHAMMAD AJMAL, J.---By this common judgment, we propose to dispose of Civil Petitions Nos.2285-L and 2286-L of 2002 as they involve identical questions of law and facts.
2. Brief facts of the case are that on 19-6-2001, the petitionerinstituted a suit for recovery of Rs,39,50,000 against the respondent under Order XXXVII, rule 2, C.P.C. Before the learned District Judge, Lahore, alleging therein that the petitioner is a businessman under the name of 'Lahore Building Material Store' at Chah Miran, Lahore and therespondent is also a businessman and deals in cement. It was averred in the plaint that about two years prior to institution of the suit the respondent borrowed a sum of Rs,12,00,000 from the petitioner and issued post-dated Cheque No,44286407 and thereafter he borrowed a sum of Rs,27,50,000 from the petitioner and handed over Cheque No,44286408 to him, both dated 26-9-1999 in favour of the petitioner and drawn on Allied Bank, Ichhra Branch, Lahore which were payable after three months. After the lapse of the said period the petitioner presented the cheques before the said Bank for encashment but the same were dishonored. The petitioner contacted the respondent for repayment of the borrowed amount but the respondent initially postponed the repayment and finally refused to do so, as such, the petitioner instituted the above suit. The respondent was served and on his behalf Syed Saqlain Jafry, Advocate filed memo. Of appearance but thereafter did not appear, as such, he was proceeded ex parte.
3. Ex parte evidence of the petitioner was recorded and after hearing the learned counsel for the petitioner, the learned Additional District Judge decreed the suit vide his judgment dated 6-7-2001.
The petitioner filed execution petition and during its pendency, the respondent filed following four applications:--
(i) Under Order XXXVII, rule 4 read with Order IX, rule 13 and section 151, C.P.C. For setting aside ex parte decree dated 26-7-2001.
(ii) Under Order XXXIX, rules 1 and 2, C.P.C. For suspension of operation of the ex parte decree.
(iii) Under section 5 of the Limitation Act for condonation of the delay.
(iv) Under Order XXXVII, rules 2 and 3, C.P.C. For leave to appear and defend the suit.
' All the above applications were dismissed by the executing Court vide its order dated 4-3-2002.
4. Feeling aggrieved by the above order, the respondent filed Civil Revisions Nos.876 and 877 of 2002 which were admitted to regular hearing and operation of the order impugned therein was suspended vide order impugned herein.
5. We have heard the learned counsel for the petitioner and have gone through the record of the case. The civil revisions filed by the respondent have been admitted to regular hearing and are pending decision before the learned High Court.
6. The impugned order being interlocutory does not call for any interference by this Court under Article 185(3) of the Constitution of Islamic Republic of Pakistan.
7. Consequently, these petitions being devoid of any merit are dismissed and leave refused.