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| Order 37 Leave to defend rejected 2026 clc 794 |
Order 37 CPC
میں تاخیر سے
Leave to Defend
دائر کرنے کا نتیجہ
✦ مقدمہ کیا تھا؟
✦ مدعا علیہ کا مؤقف
✦ ٹرائل کورٹ نے کیا فیصلہ دیا؟
✦ اسلام آباد ہائیکورٹ نے کیا قرار دیا؟
✦ اہم قانونی اصول
Must read judgment.
2026 CLC 794
[Islamabad]
Before Khadim Hussain Soomro, J
WAQAS MAHMOOD-Petitioner
Versus
BILAL MIR-Respondent
Civil Revision No. 46 of 2025, decided on 16th December, 2025.
(a) Civil Procedure Code (V of 1908)--
$.115 & O.XXXVII, Rr.1, 2-Limitation Act (IX of 1908), S.5 & First Sched., Art.159--Suit for recovery on the basis of three cheques-Leave to appear and defend filed after 40 days---Limitation-Non-service of summons owing to police custody, plea of---No separate application for seeking condonation of delay was filed-Trial Court condoned delay and granted leave---Legality---Brief facts were that through the present civil revision the petitioner/plaintiff challenged the order passed by the district court, whereby the respondent/defendant was granted leave to defend in a summary suit under O.XXXVII, C.P.C. for recovery on the basis of dishonoured cheques--Issue in the present matter was "whether the grant of leave to defend was sustainable, particularly regarding service of summons and the time/limitation for filing leave to defend?"--Held: As regards respondent's contentions that he was in custody and notice was served in jail without a copy of plaint and he lacked means or opportunity to engage counsel, the superintendent jail's report was placed on record which unequivocally confirmed proper service of notice---A conjoint reading of the notice and the jail report did not indicate, nor even suggested that the notice was issued without a copy of the plaint or its annexures---Assertion of incomplete service was therefore, bereft of substantive basis-Application for leave to defend was filed after a lapse lapse of 40 days from the date of service---In the present case, no application for seeking condonation of delay was filed before the Trial Court--The indispensable statutory condition for activating the equitable jurisdiction was entirely absent---Court could not assume jurisdiction where the legislature had withheld it, not could it exercise an equitable power in the absence of the very foundation upon which that power rested---Judicial discretion could not operate in a vacuum; it must be triggered through a formal prayer, supported by reasons and material---The court below could not lawfully enlarge the limitation period for filing the application for leave to appear and defend the suit---Impugned order was set aside---Present civil revision petition was allowed, in circumstances.
(b) Limitation Act (IX of 1908)---
---S.5---Condonation of delay, seeking of---Underlying purpose of the statute is to induce claimants to act promptly and assert their rights without undue delay-Unexplained delay by persons who ought to be aware of their legal position and who have access to legal assistance cannot be encouraged or condoned-The statutory framework thus obliges claimants to act within the prescribed period in order to maintain order and certainty in legal affairs.
(c) Limitation Act (IX of 1908)
-5.5 & First Sched., Art. 159---Civil Procedure Code (V of 1908), O.XXXVII, Rr.1, 2-Leave to appear and defend a suit under summary procedure, filing of-Limitation-Application for condonation of delay, non-filing of---Significance--Article 159 of Limitation Act, 1908 mandates filing within ten days from the date of service of summons-It is well settled principle of law that where the legislature has prescribed a specific period of limitation, the same cannot be extended or enlarged by the court unless sufficient cause for the delay is demonstrated strictly within the parameters of 5.5 of Limitation Act, through an independent application---The court cannot assume sufficient cause not create it on behalf of a litigant-The absence of condonation of delay application therefore, is not a simple omission; it is a jurisdictional vacuum.
(d) Limitation--
-Principles---Limitation is a strict statutory mandate and not a matter of judicial discretion-Law of limitation is a statue of repose, intended to ensure finality in litigation to quieten title, and to bar stale and time-worn claims---It regulates existing rights by prescribing the period within which they may be enforced and and does not itself create substantive rights--It cannot extinguish vested rights or curtail remedies unless its conditions are satisfied strictly in accordance with the statutory text---Equitable, ethical, or moral considerations cannot be invoked to circumvent its mandatory provisions, and justice, equity, and good conscience do not override its express language---Flowing from this foundational principle, the barrier of limitation cannot be crossed on the basis of hardship, sympathy, or any assumed inherent discretionary jurisdiction of the court---Ignorance, negligence, mistake, personal hardship, or poverty of a litigant does not save limitation--The statutory time bar is absolute unless the law itself provides an exception.
Gabelli v. Sec. and Exch. Comm'n 568 US 422 (2013) ref.
Ch. M. Sarmad Abbas Gujjar and Rana Ghulam Murtaza for Petitioner. Ch. Jamshed Jameel for Respondent.