' Muhammad Asim son of Ali Sher, filed a suit before learned Additional District Judge, Chishtian against Muhammad Iqbal son of Abdullah the present appellant for the recovery of Rs,1,40,000 on the basis of pronote and receipt dated 1-6-2002 under Order XXXVII, rule 2 of the C.P.C. Muhammad Iqbal, defendant/appellant, filed an application for grant of leave to appear and defend the suit on 12-1-2004. Reply was filed to that application on 11-2-2004 yet on the same date, learned counsel for the plaintiff made a confessional statement for grant of permission to the defendant subject to furnishing of surety bond. So, the learned Additional District Judge granted the permission to the defendant and directed him to furnish surety bond to the tune of Rs,1,40,000 till the next date of hearing i,e, 24-2-2004, but on the next date of hearing the defendant/appellant failed to furnish the surety bond. Therefore, the learned Court decreed the suit on 24-2-2004, against the appellant.
Aggrieved from that the defendant/appellant has filed this appeal.
2. Learned counsel appearing on behalf of appellant submits that the learned Additional District Judge could not pass the decree without recording the evidence of the plaintiff. He has referred to Muhammad Aslam v. Falak Sher 1990 CLC 1119. It is further stated by the learned counsel that the original pronote and receipt dated 1-6-2002 was not produced so the suit could not be decreed by the learned Courts below.
3. Respondent's learned counsel has submitted that the suit could be decreed without recording evidence because it was not mandatory for the learned trial Court to record the evidence when the defendant had defaulted to fulfil the condition for grant of leave to appear and defend the suit. He has referred to Zubair Ahmad and others v. Shahid Mirza and others 2004 SCM R 1747.
4. Questions posed by the learned counsel for the appellant for resolution are:--
(i) Whether suit could be decreed without recording of evidence, when the defendant had defaulted to furnish the surety bond, a condition imposed for grant of permission to appear and defend the suit (ii) When the original pronote and receipt are not produced, as to whether suit could be decreed or not?
5. The first question can be replied when we take into consideration the provision of Order XXXVII, rule 2(2) of the C.P.C. In which the words used are "in default of his obtaining such leave or of his appearance and defence in pursuance thereof, the allegations in the plaint shall be deemed to be admitted, and the plaintiff shall be entitled to a decree". Order XXXVII, rule 2(2) of the C.P.C. Noted above has envisaged two situations. One, when the defendant does not obtain leave, the other, when has been granted leave, but commits default in pursuance thereof. In these two events, the allegations in the plaint are to be deemed admitted. In the instant case, the appellant was granted leave with consent of respondent/plaintiff, who had with open heart given a concession/ consent to the defendant to appear and defend the case subject to the A furnishing of surety. The default has been committed by the appellant himself, so the appellant cannot be permitted to agitate that the allegations contained in the plaint are not liable to be admitted without evidence. Upon the commission of his default, he, in fact, has admitted the correctness of allegations asserted in the plaint and cannot complain anything else. When default is committed then the averments contained in the plaint can be admitted to be true and correct, and the learned Court can grant decree without recording evidence vide Iftikhar Ahmad v. Muhammad Yunus Khan 1982 CLC 2114 and Muhammad Aslam v. Falak Sher 1990 CLC 1119 in the above noted ruling it was held "or where defendant had committed default in defending suit in pursuance of leave to defend suit", the averments of the plaint could be treated true and correct, so it does not lie in the mouth of appellant, to challenge the validity of the judgment and decree on the basis of non-recording of evidence, because he himself has defaulted in furnishing surety bond and creating the entitlement of plaintiff/respondent to get the decree without any further proof or contest. So appellant is not entitled to any concession in this Court, as it would be tantamount to permitting him to get a decree set aside/reversed, without filing surety bond, the precondition for grant of leave to appear.
6. As regards the second objection raised by the learned counsel when the averments of the plaint are to be treated true and correct, then there is no need of production of original pronote and receipt, as the original would be required when the evidence is recorded by or the Court considers it necessary for passing of the decree. It is to be decided by the Court keeping in view the circumstances of each case. The appellant has got no right to agitate this plea. Therefore, having no merit in appeal, it is dismissed, with no order as to costs.