' MUHAMMAD ASHRAF BHATTI, J.---Brief facts gathered' from the available record, and highlighted during the course of arguments from both sides giving arise to the civil revision in hand, are that Basharat Ali Tipu/respondent No, 2 filed a suit for recovery of Rs, 18,50,000/- against Muhammad Afzal/respondent No, 1 under Order XXXVII, Rules 1, 2, CPC. Since he could not file surety bond within- time after having obtained permission for leave to appear and defend, he approached this Court through R.F.A. No, 110 of 2002 for extension of time and in pursuance of an order passed by this Court on 12.6.2003 the petitioner stood surety for him which was accepted by the learned Trial Court. However, the petitioner moved the said Court On 8.11.2003 to seeking withdrawal of his surety bond contending that due to non-fulfilment of the commitments made with him by respondent No, 1, he had lost trust in him and so could not stand surety for him any more., This application was mainly resisted by respondent No, 2 and was consequently turned down by the learned Trial Court vide the impugned order dated 28.4.2004. Hence, the civil revision in hand.
2. It has been opposed by the respondent No, 2 only.
3. Both the parties have been heard and record perused.
4. Although the word "surety" has not been defined in the Civil Procedure Code but by all means he is a person who takes responsibility of an obligation that is basically of another one. But legally speaking, the surety can be made responsible only when a decree is passed against the defendant. It may also be specifically mentioned here that Order 37, CPC provides a special procedure for specified categories of civil cases with the object to have expeditious disposal thereof in contrast to the ordinary procedure elsewhere in the said Code that is why rule 3 of Order 37, CPC makes a specific mode for the defendant to seek in the first instance grant of leave to appear and defend the suit under this order.
5. There is no cavil to say that bare reading of Rule 3 of Order XXXVII, CPC makes it abundantly clear that grant of leave' is a matter that falls within the discretionary powers of the Court. Usually if the defendant makes a plausible case the leave is granted without imposition of an condition but in case the Court considers that the issues involved therein are triable and there is also - apprehension of delay that may be caused by the defendant, then, of course, the leave may be granted conditionally or on the basis of some terms. It was in this background that leave was granted to respondent No, 1 with the condition to submit surety bond, which was accordingly submitted by the petitioner, obviously on the request of the respondent No,
1. It was accepted by the learned Trial Court as aforesaid.
6. It is not denied from both sides that the application for withdrawal of 'surety bond was made by the petitioner when recording of evidence of the parties was still in progress. The learned Trial Court took notice of the specific plea taken by the petitioner as to his losing trust in respondent No, 1 but found favour with the arguments of the opposing counsel that since he had himself opted for standing a surety in pursuance of an order passed by this Court on 12.6.2003 in the aforesaid RFA, he could not withdraw his surety bond nor it could come to an end merely on applying for its revocation/cancellation on flimsy grounds. It was further observed by the learned Trial Court that since the defendant (respondent No, 1) was not ready to concede the application in question and had also failed to provide fresh surety bond, the petitioner had no case for getting himself relieved of his responsibility unless substitute surety provided by the defendant (respondent No, 1). It was this reason that the learned. Trial Court did not discharge his surety during the pendency of the aforesaid suit.
7. It may also be mentioned here that the case-law referred to before the learned Trial Court as mentioned in para-4 of the impugned order apparently was not taken serious note of. Indeed none of the citations is attracted to the peculiar facts and circumstances of this case. Even otherwise, the very basis made upon the arguments of the opposing counsel by the learned Trial Court is not found to be justified. The fact of the matter is that a short point was raised before the Court as to whether or not the petitioner could be discharged from his surety bond submitted in favour of respondent No, 1 who owed primarily a liability to respondent No,
2. The said order does not reflect that any specific direction was passed to respondent No, 1 to submit a fresh surety bond or at least come forward to defend the position taken by the petitioner. Instead it was observed that since he was not ready to file fresh surety bond and respondent No, 2 was also resisting the request of the petitioner, no discharge order could be passed merely because the petitioner himself had stood surety for respondent No,
1. This was clearly an erroneous view taken on the part of the learned Trial Court. On the other hand, it was the duty of the learned Trial Court to seek reply of the application of the petitioner directing respondent No, 1 either to explain his position viz-a-viz the allegations levelled against him by the petitioner or file a fresh surety bond. In case respondent No, 1 had failed to comply with the direction so passed by the Court there was no hitch under the law for it to recall the leave granted to respondent No, 1 to appear and defend the suit, strike off his defence and proceed forthwith in accordance with law. Indeed, during the pendency of the suit once the petitioner had got ensured the presence of the respondent No, 1, it was his right to get considered his request of withdrawal of surety bond that meat for ensuring appearance of the respondent No, 1 to defend the respondent No, 2's suit. The impugned order gives clear 'clue to the presence of the respondent No, 1 in the Court after the said application was made by the petitioner who had very timely gone back to the learned Trial Court with a specific request that the respondent No, 1 was no more faithful to him in the matter of the payment of disputed amount in case the suit was decreed, and so, the learned Trial Court could not force him to continue as a surety for a person whose conduct even before the learned Trial Court did not justify to take a lenient view in ordering him to file a fresh surety bond or at least either concede or contest the allegations levelled against him by the petitioner which had nothing to do with the respondent No, 2 who termed the same as false before the Court. So, therefore, in the absence of any contest of the allegations levelled by the petitioner there was no option left by the learned Trial Court but to treat the same as correct and so the petitioner had made out a good case for discharge of his surety bond, specially when it was a permissible procedure due to absence of any prohibition under the law against its withdrawal during pendency of the lis and asking -the respondent No, 1 for another surety in the first place before taking punitive action against him.
8. It -may also be observed hat the liability to pay the disputed amount still remains directly the responsibility of the respondent No, 1 and the petitioner had stood surety only if the suit was decreed but before that stage came he requested the learned Trial Court that respondent No, 1 be asked for fresh surety bond due to his strained relations developed after the submission of surety bond in his favour. The file further reveals that the learned Trial Court had cancelled a surety bond earlier filed by the petitioner on 11.7.2003 and then got another one from him which was accepted on 12.7.2003. If that could be done, the learned Trial Court could have asked the respondent No, 1 to arrange for another surety as power always lies with the Court either Co accept or reject the surety bond and so in the same way in appropriate case can also discharge the surety to meet the ends of justice if good ground shown by him and call for a fresh surety from the defendant before a final decree is passed in the suit which ground was there in this case.
9. Therefore, I understand that instead of following proper procedure the learned Trial. Court exercised its jurisdiction arbitrarily and held that the petitioner could not withdraw his surety bond without applying in mind as to the grievance of the petitioners reflected in his application regarding respondent No, 1 moved well in time. So he sought indulgence of this Court through the instant civil revision wherein notice was issued to the opposite side but in the meanwhile the said suit was decreed against respondent No,
1. Therefore, the learned counsel for the respondent No, 2 has argued that since the suit has already been decreed the revision in hand has become infructuous. But I do not see eye to eye to this argument because the grant or refusal to leave to appear and defend the suit is a separate issue and the grant of decree is another one on the ground that prior to grant of decree the petitioner had moved for discharge of his surety. Further, due to this petition the issue of discharge or otherwise rested upon its outcome specially when the said decree still remains un-executed coupled with the fact that the proceedings of the suit were not stayed by this Court as prayed for by the petitioner, therefore, the petitioner should not suffer in the matter under such circumstances, more importantly when the said decree is effective and capable of execution against the respondent No, 1.
10. In the light of the above. I conclude that the it learned Trial Court acted in haste and failed to exercise its discretion, judiciously, proceeded to pass a perverse and fanciful order which is not sustainable in the eyes of law particularly. Hence this petition is accepted and the impugned order dated 28.4.2004 is set aside with the result that the surety bond furnished by the petitioner shall stand treated as withdrawn with permission of the Court. Since admittedly the decree in the meanwhile has already been passed this order cannot adversely affect its execution and therefore, the grant of leave to appear and defend granted by the learned Trial Court to the respondent No, 1 shall be deemed to be unconditional. There shall be no orders as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.