' NASIR SAEED SHEIKH, J.---The petitioners are defendants Nos.1 and 2 in a suit for recovery of Rs,76,38,00,000 instituted under Order XXXVII Rule 2, C.P.C. By the respondent on 8-2-2010. This suit is pending before a learned Additional District Judge, Lahore. The petitioners moved an application under Order XXXVII Rule 3 of C.P.C. Seeking leave to appear and defend the suit. The learned Addl: District Judge vide order dated 11-3-2011 allowed the petitioners leave to appear and defend the suit subject to furnishing surety equivalent to the amount claimed by the respondent/plaintiff in the suit and this surety was to be submitted within a period of seven days from the date of the order dated 11-3-2011. This order dated 11-3-2011 has not been assailed and has attained finality.
2. The petitioners submitted a surety bond on 17-3-2011 before the learned Additional District Judge.
The petitioners also submitted application under Order VII Rule 11 of C.P.C. For the rejection of the plaint whereas the respondent filed an application for striking of the defence of the petitioners on the ground that the petitioners/defendants have failed to furnish the proper surety as per order passed by the Court. The application moved under Order VII Rule 11, C.P.C. Was dismissed by the learned Additional District Judge. The learned Additional District Judge vide a combined order dated 23-1-2012 passed an order that the surety submitted by the petitioners is for Rs,28,00.00,000 only and it is not equivalent to the total amount of Rs,76,38,00,000. The petitioners were directed to make good the deficiency in surety bond within a further period of 15 days from the date of the order. The petitioners assailed this part of the order dated 23-1-2012 through. Civil Revision No,363 of 2012 which came up for hearing before this Court and it was dismissed on. 3-2-2012. Paragraph No,5 of the. Order dated 3-2-2012 passed by this Court is relevant and is reproduced:-- "The surety bond equivalent to the amount of Rs,76,38,00,000 which is admittedly the amount claimed in the plaint, has to be submitted by the petitioners to the satisfaction of the learned Additional District Judge Lahore. The petitioners who have submitted the surety bond by Furnishing the supporting documents to the tune of Rs,28,00,00,000 only which do not equalize the total amount of Rs,76,38,00,000. The learned Additional District Judge has allowed the petitioners the benefit of the face value of the documents to the tune of Rs,28,00,00,000 as annexed with the surety bond. The petitioners are under the legal obligation to submit a surety bond to the satisfaction of the learned Additional District Judge. The order dated 23-1-2012 passed by the learned Additional District' Judge to that extent is perfectly. Legal. It is also an ancillary order and does not amount to be a "case decided".
3. The petitioners then moved an application on 7-2-2012 before the learned Additional District Judge seeking extension of the time by one month for compliance with the order dated 23-1-2012.
In the same application, the petitioners also sought the conducting of survey so as to get the correct valuation made of the assets and property offered by the petitioner No,
1. The learned Additional District Judge extended the time for submission of surety bond by the petitioners till 18- 2-2012. Instead of making up the deficiency., the petitioner No,1 submitted an affidavit dated 18-2- 2012 before the learned Addl:District Judge that the surety bond already submitted by the petitioners is of sufficient equivalence with the amount claimed in the plaint. The learned Additional District Judge vide order dated 23-2-2012 held that the deficiency in 'the surety bond has not been made up by the petitioners and he accordingly struck of the right of the defense of the petitioners and recalled the order allowing leave to appear and defend the suit to the petitioners. Through the instant civil revision, order dated 23-2-2012 is assailed by the petitioners/defendants of the suit.
4. It is contended by the learned counsel for the petitioners that the petitioners submitted an affidavit dated 18-2-2012 praying for the evaluation of the property the detail of which was furnished by the petitioners to support the surety bond. The learned counsel contended that the plaintiff/respondent was not interested in getting any surety bond from the petitioners and in fact he moved an application seeking the attachment of the property of the petitioners therefore the learned Additional District Judge should have accepted the surety bond already submitted by the petitioners. The learned counsel contends that the learned Additional District Judge without undertaking the evaluation of the properties furnished by the petitioners for proving the equivalence of the surety bond with the amount claimed in the plaint passed the impugned order dated 23-2-2012 of recalling the leave granted to the petitioners. The learned counsel contends that the respondent has lodged a frivolous suit against the petitioners and he was facing many criminal cases and there was no justification for the learned Additional District Judge to have recalled the order granting leave to the petitioners. The learned counsel for the petitioners has relied upon case-law reported as. Messrs Khalil Jute Mills Ltd. Through Manager v. United Bank Limited and 5 others (1994 SCM R 512), Abdul Rauf Ghauri v. Mrs. Kish war Sultana and 4 others (1995 SCMR 825) and Mian Rafique Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. And another (PLD 1996 SC 749).
5. I have considered the arguments of the learned counsel for the petitioners.
6. A suit for the recovery of amount of Rs,76,38,00,000 has been instituted against the petitioners on the basis of the cheques, the detail of which is given in Paragraph No,13 of the plaint. The learned Additional District Judge with the consent of the respondent granted leave to the petitioners to appear and defend the suit subject to furnishing surety bond equivalent to the amount claimed in the plaint by the plaintiff. This leave was granted to the petitioners vide order dated- 11-3-2011 and this order has not been further assailed and has attained finality. The petitioners submitted a surety bond and the learned Additional District Judge was not satisfied with the sufficiency of the said surety bond and vide order dated 23-1-2012, the surety bond submitted by the petitioners was found to be insufficient as against the amount of Rs,76,38,00,000 and it was considered to be sufficient only equivalent to Rs,28,00,00,000. The petitioners were directed to make up the deficiency in the surety bond within a period of 15 days from the passing of the order from 23-1- 2012 by the learned Additional District Judge, Lahore. This order was assailed by the petitioners before this Court through Civil Revision No,363 of 2012 which was dismissed on. 3-2-2012. It was observed by this Court that the furnishing of surety bond by the petitioners to the satisfaction of the learned Additional District Judge was mandatory for the petitioners and it was for the learned Additional. District Judge to consider the sufficiency or otherwise of the surety bond submitted by the petitioners to his satisfaction. It was also observed by this Court that the order passed by the learned Additional District Judge dated 23-1-2012 assailed through the Civil Revision No,363 of 2012 did not amount to "case decided".
7. The petitioners then submitted an application on 7-2-2012 before the learned Additional District Judge and although they prayed for further evaluation of their assets but practically sought an extension in the period granted by the learned Additional District Judge for submission of sufficient surety to the satisfaction of the learned Additional District Judge which extension was granted to the petitioners in order to make up the deficiency in the surety bond till 18-2-2012. The petitioners No,1 then submitted an affidavit dated 18-2-2012 on 20-2-2012 before the learned Additional District Judge in which he again sought assessment by the learned Additional District Judge of his assets.
The petitioners did not fulfil the condition subject to which the leave was granted to them vide order dated. 11-3-2011 and could not submit surety to the satisfaction of the learned Additional District Judge. Resultantly, the learned Additional District Judge was thus left with no alternative but to pass the impugned order dated 23-2-2012 which does not suffer from any illegality. The case- law cited by the petitioners in support of his contentions is not relevant in the instant case. In the judgment cited as Messrs Khalil Jute Mills Ltd. Through Manager v. United Bank Limited and 5 others (1994 SCM R 512), the leave to appear and defend the suit was granted to the petitioners of the said case subject to depositing the amount in question in the Court or with the plaintiff/petitioner and the validity of the condition imposed by the Banking Court was assailed and the Supreme Court of Pakistan modified the order passed in the lower Court directing the deposit of the whole amount as claimed in the plaint which was Rs,20,35,897 and instead directed the petitioners to deposit cash amount of Rs,16,00,000 for defending the suit. In the case-law cited by the learned counsel for the petitioners reported as Abdul Rauf Chauri v. Mrs. Kishwar Sultana and 4 others (1995 SCM R 925), the petitioners/defendants of the case was allowed to appear and defend the suit subject to furnishing bank guarantee equivalent to the amount claimed in the suit. The Hon'ble Supreme Court of Pakistan modified the said order passed by the learned lower Court and directed the defendant of the suit to furnish security to the satisfaction of the trial Court in the circumstances of the case. In the third judgment relied upon by the learned counsel for the petitioners reported as Mian Rafique Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. And another (PLD 1996 SC 749), the petitioners defendants of the suit was allowed leave to appear and defend the suit subject to furnishing of bank guarantee which order was assailed and ultimately the matter came up before the Hon'ble Supreme Court of Pakistan and the condition imposed by the two Courts below in the said matter was not interfered with. None of the three cases cited by the learned counsel for the petitioners apply to the facts and circumstances of the case. The petitioners were allowed leave to appear and defend the suit subject to furnishing of surety bond equivalent to the amount claimed in the plaint to the satisfaction of the learned Additional District Judge. The petitioners furnished surety bond equivalent to a portion of the total amount of Rs,76,38,00,000. The learned Additional District Judge directed the petitioners to make up the deficiency in the surety bond submitted. The order granting the leave subject to furnishing of surety bond dated 11-3-2011 was not further assailed by the petitioners and it attained finality. The petitioners were under obligation to fulfil the condition under which they were granted leave to appear and defend the suit. They also sought further time to do the needful to the satisfaction of the learned Additional District Judge and the matter kept pending for the said purpose in spite of the extensions granted by the learned Additional District Judge. The petitioners could not do the needful. The earlier order passed by the learned Additional District Judge holding the surety bond submitted to be insufficient to the satisfaction of the learned Additional District Judge was not interfered by this Court and the Civil Revision No,363 of 2012 preferred by the petitioners was dismissed vide order dated 3-2-2012. The petitioners were themselves responsible for not fulfilling the condition on which the leave was granted to them to appear and defend the suit. In the exercise of my revisional jurisdiction, I do not find any illegality in the order passed by the learned Additional District Judge. The contention of the learned counsel for the petitioners that the respondent is not interested in the furnishing of surety bond by the petitioners equivalent to the amount narrated in the plaint has no legal basis and could not absolve the petitioners from their legal obligation created through a validly passed order by the learned Additional District Judge granting them leave to appear and defend the suit subject to furnishing of surety equivalent to the amount claimed in the plaint which is Rs,76,38,00,000. The leave was granted to the petitioners on 11-3-2011 and they failed to fulfil the condition till 23-2-2012 when the learned Additional District Judge ultimately recalled the conditional order dated 11-3-2011. The learned Additional District Judge has now fixed the case for recording the evidence of the plaintiff and has proceeded in the matter in accordance with law which course of action is fully supported by the judgments of the Hon'ble Superior Courts of Pakistan reported as Col. (Retd.) Ashfaq Ahmad and others v. Sh.
Muhammad Wasim (1999 SCM R 2832), Messrs Shaheen Pumps (Pvt.) Ltd. Through, Chief Executive v. Messrs Beacon Engineering Industry through Proprietor and another (2006 M LD 1709), Habib Bank Limited v. Pakistan National Textiles Mills and others (2001 M LD 1137) and Fayyaz-ul-Hasan v. Messrs National Feed (Pvt.) Ltd. (2001 M LD 1630). The order passed by the learned Additional District Judge is neither illegal nor is without lawful jurisdiction. The instant civil revision being devoid of any legal force is accordingly dismissed in limine.