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Civil Revision No 273 of 1985 of BWP, decided on 8th October, 1985

‑‑‑S. 115 3 O.XXXVII, rr. 2 to 4‑‑Suit for recovery‑‑Application for leave to defend‑‑Limitation‑‑Con donation of delay‑‑No restraint on trial Court in matter of condonation of delay or allowing leave to defend, to defendants who do not appear within ten days of service of summons‑ Trial Court while condoning delay applying its mind and giving reasons in support of its order‑‑Order upheld in revision.‑‑[ Condonation of delay].

Muhammad Arif Mian for Petitioners.

On 11‑2‑1985, Zahoor Ahmad, Ghulam Rasool and Hazoor Ahmed petitioners filed suit before the learned District Judge, Bahawalpur under Order XXXVII, rule 2, C.P.C. for the recovery of Rs.21,000 on the basis of pronote, against Ghulam Nabi respondent. The learned District Judge issued summons in Form No. IV in Appendix‑B. The same was served on the defendant /respondent on 18‑2‑1985. The defendant however, did not obtain leave to defend the suit within ten days of the service of the summons. On 25‑3‑1985, he moved application for condonation of delay on the ground of his illness so that he may be able to defend the suit. Alongwith the application, he filed an affidavit to the effect that since the service of summons on him, he remained ill till 24‑3‑1985. The application was resisted. The learned trial Court however, allowed the application on 27‑5‑1985 permitting defendant /respondent to contest the suit, hence this petition.

2. The learned counsel for the petitioners submitted that the learned District Judge had no jurisdiction to condone the delay in filing the application for leave to defend the suit and as such the impugned order was quite illegal.

3. I have considered the arguments made by the learned counsel with care. I have not been able to persuade myself to agree with him in as much as there is no statutory restraint on the trial Court in the matter of condonation of delay or allowing leave to defend to the defendants who do not appear within ten days of the service of summons. Under rule 4 of Order XXXVII, C.P.C., the trial Court, upon the defendant's showing sufficient cause for his inability to appear and obtain leave within ten days, can even set aside ex parte decree and grant him leave to defend the suit. The trial Court has applied its mind and given reasons in support of its order.

For what has been stated above, there being no merit the petition is dismissed in limine.

M. Y . H . Petition dismissed.

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