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Civil Revision No. 532 of 1978, decided on 23rd September, 1980.

Civil Procedure Code (v of 1908).

O. XX, r. 11 & S. 115-Instalments-Revision-Power under O. XX, r. 11 discretionary and order refusing to allow instalments liable to interference only when passed arbitrarily--Trial Court deciding application of petitioner seeking instalments on due consideration and by giving cogent reasons and nothing. available to show trial Court having exercised its powers capriciously or in an arbitrary manner, petition for revision dismissed, in circumstances.

Asian Saeed-ur-Rehman Farrukh for Petitioners.

Shahid Hussein Kadri for Respondent.

Date of hearing : 16th September, 1980.

This revision calls in question the orders dated 10-6-1976 and 25-1-1978 passed by the learned Senior Civil Judge, Sahiwal.

2. Briefly stated the facts are that the respondent-Bank instituted a suit for recovery of Rs. 2,44,130 against the petitioner-Company. It was also prayed that future interest at the rate of 13 % per annum be ordered to be recovered on the decretal amount. The petitioner filed an application in the said suit on 29-3-1976 requesting that the suit in respect of the actual amount of loan may be decreed but the petitioner be allowed to pay the decretal amount through monthly instalments of Rs. 4,000 leaving the parties to bear their own costs. This application was resisted by the respondent-Bank. On 10-6-1976, when this case came up for hearing before the trial Court, neither any representative of the petitioner nor its counsel appeared and consequently, the trial Court proceeded ex parte. On the same date, after rejecting the application of the petitioner for instalments, the trial Court on the basis of the admission made in the application by the petitioner defendant admitting the liability of the suit amount decreed the suit with costs. After the above decree had been passed, the learned counsel for the petitioner appeared before the trial Court and presented an application under Order IX, rule 7 for setting aside the ex parte proceedings earlier ordered on the same date. The trial Court rejected this application by the same order holding that already the suit having been decreed, no proceedings could be taken in this application. It appears that the petitioner thereafter moved another application under Order IX, rule 13 for having the ex parte decree dated 10-6-1976 set aside. This application of the petitioner was also dismissed by the learned Senior Civil Judge by his order dated 25-1-1978.

3. Feeling aggrieved, the petitioner preferred a revision before the learned Additional District Judge, Sahiwal, who in view of the preliminary objection, held that the revision petition be returned for presentation before the competent Court in view of lack -of jurisdiction of the Additional District Judge to hear revision arising out of a suit valued at Rs. 2,44,130. Hence this revision petition.

4. A preliminary objection was raised on behalf of the respondent-Bank to the effect that the revision is incompetent in view of the position that appeal lay both against the decree passed ex parte on I0-6-1976 as also against the order dated 25-1-1978 whereby the application of the petitioner for setting aside the decree was dismissed.

5. The learned counsel for the petitioner, in reply submitted that although it is correct that revision would not be competent against a decree or an order refusing to set aside an ex parte decree, the present revision would be competent because by the impugned order the learned trial Court also disposed of the application of the petitioner praying for instalments. H submitted that instalments could be ordered by the Court as provided b rule I 1 of Order XX, C. P. C. and the refusal to do so by the trial Court, with the impugned judgment dated 10-6-1976, being arbitrary and no appeal being competent against the order passed on that application, the revision would b competent.

7. As regards the contention of the learned counsel for the petitioner that the revision would be competent against that portion of the order dated 10-6-1976 whereby the trial Court refused to allow the instalments, suffice it to say that the revision cannot succeed in view of the fact that the decision on the application seeking instalments has been passed on due consideration of the matter and by giving cogent reasons. The learned counsel for the petitioner could not but concede that the power exerciseable under Order XX, rule 11, C. P. C. is discretionary and an order refusing to allow instalments could only be interfered with if it was arbitrary. He was, however, unable to point out any arbitrariness or capriciousness in exercise of discretion by the trial Court which held that allowing of instalments would mean denying the relief to the plaintiff-respondent as re-payment by instalments as prayed for by the petitioner would take a period of five years for re-payment. If I may say so, the period of five years would have been just required to liquidate the amount as claimed in the suit, but by the time the suit amount would have been liquidated further accrual of interest of a large amount may have occurred.

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