Law: Civil Procedure Code (V of 1908)

Section: O.XXXVII,R.4

Law: Civil Procedure Code (V of 1908)

Section: O.XXXVII,R.4

Law: Pakistan Penal Code, 1860

Section: 489F

(a) Civil Procedure Code (V of 1908)-------O. XXXVII, Rr.2, 4 & O. IX, R.13---Limitation Act (IX of 1908), Art.181---Recovery suit---Application for setting aside ex parte decree---Trial Court dismissed defendants' application for leave to defend for non prosecution and decreed the suit against him---Defendant's application for setting aside the ex parte decree was also dismissed---Validity---Plaintiff averred that defendant had purchased TV sets from him and issued in his favour a cheque which was dishonoured leading to registration of F.I.R. against defendant---Averments of plaint and that of F.I.R. differed from each other---Both said documents were available on the court file and court was duty bound to consider the same while passing the ex parte decree---Defendant had specifically objected to illegality of business of money lending carried out by plaintiff without any licence---Trial Court should have considered that no one except the financial institutions or companies authorized by State Bank of Pakistan could do the business of money lending---Trial Court was bound to ascertain whether the illegal lending could be recovered through court---Court being custodian of the right of both the parties, could not ignore facts of the case even in ex parte proceedings---Court could not pass a decree for damages without finding out the loss suffered by the claimant---Application under the special procedure for setting aside the decree even on merit was maintainable under O.XXXVII, R.4, C.P.C. where applicant had succeeded to prove special circumstances for setting aside the decree---Application under O.XXXVII, R.4, C.P.C. was covered by Art.181 of the Limitation Act, 1908 which provided for limitation of three years for such application---Trial Court failed to consider that the plaintiffs' claim was based on money lending without permission by the competent authority---Defendant successfully made out case of special circumstances under O. XXXVII, R.4, C.P.C.---Revision was allowed--Impugned ex parte decree was set aside and case was remanded to Trial Court for decision on defendant's application in accordance with law. (b) Civil Procedure Code (V of 1908)---…

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