WAQAS MAHMOOD vs BILAL MIR S — 2026 CLC 794 ISLAMABAD

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WAQAS MAHMOOD VS BILAL MIR S.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 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.

WAQAS MAHMOOD vs BILAL MIR S — 2026 CLC 794 ISLAMABAD

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