ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

1^st Appeal No. 14 of 2019

PRESENT:

Mr. Justice Aqeel Ahmed Abbasi

Mr. Justice Abdul Mobeen Lakho

Hearing / Priority Case:

1. For order on office objection/reply as at ‘A’.

2. For hearing of main case.

3. For hearing of CMA No.894/2019.

25^th April 2022

Khawaja Naveed Ahmed, Advocate for the Appellant alongwith Mr. Muhammad Faisal Khan, advocate.

Mr. Sohail Ahmed Lakhair, Adv. for Respondent No.1.

O R D E R

1. Instant appeal was filed against the order dated 29.01.2019 and decree dated 01.02.2019 passed by the learned XII^th Additional District Judge, Karachi (South), whereby, summary suit filed by respondent under Order XXXVII Rule 2 CPC for recovery of an amount of Rs.40,00,000/- has been decreed alongwith markup. Learned counsel for the appellant has argued that impugned judgment and decree has passed without recording evidence as leave to defend application filed by the appellant was dismissed for being barred by limitation, whereas, it was filed within time [10 days] from the date, the appellant was served with Court’s notice and vakalatnama was filed with a request to file the leave to defend application.

2. Learned counsel for the appellant has drawn the attention of this Court to the order dated 17.03.2022 passed in the instant appeal, wherein, it has been observed that in view of the facts and circumstances of the case and the judgment relied upon by the learned counsel for appellant, the leave to defend application was filed within time, therefore, requests that instant appeal may be allowed and the matter be remanded back to the learned trial Court to treat the leave to defend application as within time and decide the appeal on merits, after recording evidence

3. On 17.03.2022, following order was passed:-

“ Khawaja Naveed Ahmed, Advocate for the appellant.

Mr. Asif, Advocate holding brief for Shaikh Mohammad Ramzan, Advocate for the respondent, who is reportedly busy before another Bench, requests for adjournment. Learned counsel for the appellant submits that the appeal has been filed within a period of limitation as, according to the learned counsel for the appellant. Ten days were expired on the day when it was a holiday, whereas on the next date the appeal was presented which is in time. In support of his contentions, learned counsel for the appellant has placed reliance on the cases reported as PROVINCE OF PUNJAB VS. MOHAMMAD SALEEM AND OTHERS (PLD 2014 SC 783) and SIRAJ AHMED and others Vs. PROVINCE OF SINDH and others (2001 SCMR 1459). Prima facie, the contention of the learned counsel for the appellant seems correct, however, since the counsel for the respondent is not in attendance, we are adjourning this matter to be fixed after four weeks. R&P of Summary Suit No. 101 of 2018 may be called from the concerned Court.”

While confronted with above position, learned counsel for the respondent No.1 submits that since the vakalatnama was filed on 11.10.2018, therefore, the period of ten (10) days was expiring on 21.10.2018, whereas, the leave to defend application was filed on 22.10.2018.

4. As it has already been argued by the learned counsel for the appellant, who has also placed on record the Newspaper ‘Daily Jang’ of 21.10.2018, which was Sunday (Holiday), therefore, the said day has to be excluded while calculating period of limitation, whereas, leave to defend application was filed on the very next date i.e. 22.10.2018 (Monday), therefore, there is no willful default in filing leave to defend application. Moreover, we are of the view that instead of deciding the matters on technicalities, the Court should decide the same on merits, and if there is some delay which can be reasonably explained, the same can be condoned in appropriate cases by Court within its discretion. Whereas, in the instant case, no objection seems to have been raised by the office with regard to the period of limitation, however, the learned trial Court did dictate upon this aspect of limitation and dismissed the leave to defend summarily, therefore, the actual facts with regard to calculation of limitation period, which have been highlighted by the appellant before this Court, could not be taken into consideration, consequently, appellant could not present his case on merits by producing evidence.

5. In view of hereinabove facts and circumstances of this case, we are of the view that leave to defend application was filed within period of limitation, therefore, subsequent judgment and decree passed by the learned trial Court without recording evidence, in the instant case, is erroneous in law and facts. Therefore, while setting aside the impugned judgment and decree, we remand the matter back to the learned trial Court having jurisdiction over the case to decide the case on merits after recording evidence and hearing the learned counsel for the parties, who shall not seek unnecessary adjournments, preferably, within a period of two months from the date of receipt of this order.

Instant appeal stands allowed in the aforesaid terms alongwith listed application.

JUDGE