' S. ALI HASSAN RIZVI, J.--- Muhammad Asghar plaintiff/appellant had on 9-2-2002 filed a suit under Order XXXVII, rules 1 and 2, C.P.C. For recovery of Rs.4,00,000 on the basis of an alleged pro note dated 3-6-2000.
2. Muhammad Hussain defendant/respondent moved an application under Order XXXVII, rule 2(2), C.P.C. Seeking leave to appear and defend the suit which was allowed by the learned Additional District Judge, Depalpur by order dated 20-4-2002 subject to furnishing security equal to the suit amount within seven days otherwise it was directed that his' application would stand dismissed.
Vide order 13-11-2002 the learned trial Judge observed that the delay in furnishing security was condonable. He, therefore, allowed the defendant/respondent to submit his written statement. The written statement was accordingly filed on 23-11-2002. By the same order dated 13-11-2002 the learned trial Judge dismissed application of the plaintiff/appellant seeking the striking off defence of the defendant/respondent and decreeing the suit straightaway under Order XXXVII, rule 2(2), C.P.C. Taking the averments in the plaint as admitted.
3. The trial proceeded on the following issues as framed on 25-2-2003.
"Issues:
(1) Whether the plaintiff has no cause of action against the defendant? OPD;
(2) Whether the plaintiff has not come to the Court with clean hands and the defendant is entitled to special costs under section 35-A, C.P.C.? OPD;
(3) Whether the plaintiff is entitled to the decree for recovery of Rs.4,00,000 on the basis of pro note dated 3-6-2000? OPP;
(4) Relief."
4. On conclusion of the trial, the learned Additional District Judge, vide judgment dated 5-7-2003 dismissed the suit with special costs of Rs.5,000 to be paid to the defendant/respondent. The present R.F.A. Was filed on 16-10-2003 challenging the validity of the afore-said judgment and decree dated 5-7-2003.
5. We have heard learned counsel for the parties and gone through the record.
6. Issue No.3 being crucial, was taken up by the learned trial Court in the first instance. The stance of the respondent/defendant in his written statement was that the plaintiff/appellant had no valid cause of action; that the suit was false and frivolous and that the alleged pro note was not testified by two witnesses. On facts, it was averred by the defendant/respondent that he had no acquaintance with the plaintiff/appellant Muhammad Asghar; that there was no Lain-Dain between him and the plaintiff/appellant; that he had never received any money and that the entire suit was based on false version. As to the execution of the pro note, it was the case of the defendant/respondent that he was village simpleton; that Zulfiqar who was son of Mst. Iqbal Begum the daughter of his Tayazad, Muhammad Jahangir, had some business relation with the plaintiff/appellant that afore-said Zulfiqar was kept under illegal confinement by the plaintiff/appellant; that he defendant/respondent along with his father-in-law Abdul Aziz, had gone to get him released and at that time the plaintiff/appellant had unduly got his thumb impressions on some papers.
7. The learned trial Judge after discussing the entire evidence found issued No.3 against the plaintiff/appellant holding that the defence version inspired his confidence; that no consideration was ever passed on to the defendant/respondent and there was indeed a 'dispute between afore- said Zulfiqar and Muhammad Asghar.
8. Mian Muhammad Hussain, defendant/respondent appeared as D.W.1. He examined Zulfiqar as D.W.2. Their statements were found consistent with the defence version as given in the written statement. The learned trial Judge conversely found that Muhammad Zafar P.W.2 and Bashir Ahmad P.W.3 were shopkeepers and tenants of one Ghulam Abbas who was Mamoon of the plaintiff/appellant whereas P,W.4 Abdul Khaliq was a petition writer working in the chamber of father of the plaintiff/appellant. He, therefore, disbelieved the evidence led by the plaintiff/appellant. We also find that the statements of P.W.2, P.W.3 and P. W.4 as afore-mentioned lacked luster of impartiality. The plaintiff/ appellant Muhammad Asghar appeared as P.W.1. He failed to prove as to what was the occasion for advancing Rs.4,00,000 to the defendant/ respondent on his simple request and there and then without any previous relationship, whatsoever. The defendant/respondent was an, old man of 75 years.
9. After going through the evidence and ratiocination adopted by the learned trial Court, we find that the plaintiff/appellant had failed to prove his case as set up in the plaint. He was, therefore, not entitled to the decree for recovery of Rs.4,00,000. Consequently, we uphold the findings of the learned trial Court on this issue.
10. Since we have affirmed the findings of the learned trial Court on issue No.3 as above, it could not be held that the plaintiff/appellant had any valid cause of action. The learned trial Court had rightly come to the conclusion that the plaintiff/appellant had not come to the Court with clean hands. Suit was, therefore, rightly dismissed with special costs of Rs.5,000.
11. Learned counsel for the plaintiff/appellant nevertheless contended that the defendant/respondent having not furnished the surety as directed by the learned trial Court by order dated 20-4-2002 within seven days, his written statement as also the evidence could not have been read on record and that consequently plaintiff/appellant was entitled to decree in terms of Order XXXVII, rule 2(2), C.P.C. According to learned counsel for the appellant, the defendant/respondent had failed to submit his written statement and furnish security within seven days as directed by the learned trial Court by order dated 20-4-2002 and that, therefore, he having thus defaulted, the averments made in the plaint would be deemed to have been admitted entitling the appellant to a decree in terms of Order XXXVII, rule 2(2), C.P.C.
12. We have hesitation to go by the above contentions for reasons more than one. Firstly, the defendant/respondent was allowed to appear and defend the suit by order dated 20-4-2002 subject to the condition that he would furnish security equal to the suit amount within seven days.
The learned trial Judge was moved by the plaintiff/appellant pointing out that the defendant/respondent having defaulted in furnishing surety within seven days, his defence be struck off and the suit be decreed straightaway. This application of the plaintiff/appellant was rejected by the learned trial Court on 13-11-2002 and 4-2-2003 which orders were not further agitated against. The plaintiff/appellant submitted himself to the trial being held by the learned trial Court after framing issues. He led evidence without demur. The afore-said orders could have been challenged in revision but nothing of the sorts was done. Greater always includes lesser and if the learned trial Judge had the mandate to direct furnishing of security within a certain period of time, he had the authority to extend time under section 148,-C.P.C. And this is what he had done.
We, therefore, feel that the plaintiff/appellant had G conceptually accepted the orders dated 13-11- 2002 and 4-2-2003 whereby the defendant/respondent was allowed to submit his written statement and requisite security till the next date. It may be noted that all procedural laws are framed for advancement of justice and to take a cause to a logical end for and against the litigating parties. Technicalities cannot be allowed to operate as tyrant masters so as to smother and frustrate the genuine claims. The provisions of section 148, C.P.C. Were consciously invoked by the learned trial Court whereby delay was condoned on the application of the defendant/respondent. The said provisions could be brought into consideration either suo motu by the Court in the interest of justice or on the application of the party concerned. The provisions of section 5 of the Limitation Act have been made applicable to the proceedings of suit tried summarily under Order XXXVII, rule 3(3), C.P.C.
13. At the risk of repetition it may be observed that the plaintiff/ appellant did not challenge the orders dated 13-11-2002 or 4-2-2003 and now when he has lost his suit after full-dress trial, he cannot be allowed to turn round and rake up the same question, which was raised by him and did not find favour with the learned trial Court. In any case, nothing substantial was likely to run upon the above question when the plaintiff/appellant had no case on merits. That being so, the findings of the learned trial Court could neither be varied nor reversed nor interfered with in any manner vide section 99 of the C.P.C. The learned trial Judge in his aforesaid orders had also found that the defendant/ respondent had submitted surety bond on 6-5-2002 i.e. Two days before the date fixed in the main case. He held that the omission on the part of defendant/respondent was bona fide and, therefore, deserved to be supplied. We have no reason to differ.
14. No other point was raised. No misreading of the evidence on record was pointed out either. We, therefore, uphold the judgment and decree of the learned trial Court dated 5-7-2003 dismissing the suit of the plaintiff/appellant and dismiss this Regular First Appeal with costs.
15. The record of the trial Court be returned intact.