' ABDUL MAALIK GADDI, J.---Through this appeal, the appellant has assailed the legality and propriety of the judgment and decree dated 31-5-2013 passed by the learned III-Additional District Judge Karachi East in Summary Suit No,83 of 2012 under Order XXXVII C.P.C. Filed by respondent No,1 for recovery of Rs,48,25,000/- (Rupees Forty Eighty Lac Twenty-Five Thousand Only) whereby the learned trial Court after hearing the parties decreed the suit with interest of 10% till the amount is realized.
2. Brief facts leading to filing of the above appeal are that the respondent No,1/plaintiff has filed the Summary Suit under Order XXXVII C.P.C. For recovery of amount of Rs,48,25,000 against the appellant/defendant mentioned in it that the respondent No,1/plaintiff has business relationship with the appellant/defendant and due to said reason, the appellant/defendant issued five Cheques bearing Nos. (i) 5248363 amounting Rs,1100,000, (ii) 5244212, (iii) 5253822, (iv) 5253827 and (v) (5253828) total amounting to Rs,48,50,000/- on different dates and these cheques were dishonoured when presented before the bank. It is averred that the respondent No,1/plaintiff contacted to the appellant/defendant and disclosed about the bouncing of the cheques but the appellant/defendant started delaying tactics and giving any reply on phone calls as well as on personal contacts, however, the respondent No,1/plaintiff tried his level best to take his money back but all such hopes went into vain when the appellant/defendant flatly refused to return the amount of respondent No,1/plaintiff, hence the respondent No,1/plaintiff reported the matter to S.H.O. Police Station Jamshed Quarter, who did not lodge the F.I.R. Against the appellant/defendant. It is averred that thereafter the respondent No,1/plaintiff filed application under section 22-A Cr.P.C. Before the Hon'ble District and Sessions Judge, Karachi East and then the S.H.O., Police Station Jamshed Quarter lodged the F.I.R. Bearing No,552 of 2012 under section 489-F P.P.C. Against the appellant/defendant. The respondent No,1/plaintiff has filed the instant suit with the following prayer:--
(a) To pass the judgment and decree for recovery of Rs,48,25,000 (Rupees Forty-Eight Lac and Twenty-Five Thousand only) in favour of the plaintiff and against the defendant, plus interest at the rite of 10% per annum.
(b) Cost of the suit and/or any other relief, which this Court may deem fit and proper in the circumstances of the case may be granted.
3. From the record it appears that after institution of Summary Suit, notice was issued to appellant and on 9-2-2013 the appellant has filed application under Order XXXVII, Rule 3, C.P.C. Praying therein to allow him for leave to defend this case with a plea that the allegations mentioned in the plaint are false and fabricated. While elaborating his claim the appellant has taken the plea that he has no concern with the business transaction with the respondent No,1 and plaintiff/ respondent No,1 even did not disclose which type of business he was run with the appellant. In his application, he has also stated that Arsalan Pervez has business dealing with the respondent No,1 and plaintiff/respondent No,1 has also lodged F.I.R. No,145 of 2012 under section 489-F, Police Station Frere against the brother of appellant made the same type of allegations and another F.I.R. No,558 of 2012 under section 489-F, Police Station Jamshed Quarter against the Uncle of the appellant namely Barkatullah Siddiqui on same footings. It is also the case of the appellant that Arsalan Pervez has also paid the amount which was against due to him.
4. From record it appears that on 26-4-2013, the learned trial Judge after hearing the parties on application under Order XXXVII, Rule 3, C.P.C. Granted conditionally leave to defend subject to furnishing security for the suit amount before the Nazir of the Court within 15 days. Admittedly, the required security was not furnished, however, in this regard an application for further time was sought by appellant, which was refused as no cogent reason was assigned in it and the learned trial Judge after having perused the record decreed the suit filed by the respondent No,1, hence this appeal.
5. I have heard the parties advocates and perused the record with due care.
6. Learned counsel for the appellant argued that the impugned judgment and decree are erroneous in law and facts on the ground that the application for leave to defend was conditionally granted by the trial Court but due to some unavoidable circumstances required security could not furnish before the trial Court within time and in this regard an application for further grant of time dated 25-5-2013 was moved but the same was rejected vide order dated 31-5-2013. As such according to him he has been deprived to place his case by leading evidence during trial. He has further submitted that the order passed by the learned trial Court is against the law and fact and has be passed in a hasty manner without giving him any fair opportunity to lead his evidence. He has further submitted that he filed the present appeal and during proceeding of this appeal though this Court vide order dated 12-11-2013 directed the appellant to deposit the decretal amount with the Nazir of this Court within one month and in compliance of the said order he has offered security in the sum of Rs,48,25,000 (Rupees Forty-Eight Lac Twenty-Five Thousand only) by depositing Indenture of Lease in respect of Flat No,602-B, 6th Floor, measuring 350 Square Feet on Plot No,111, Roshan Colony, Manikji Road, Soldier Bazar No,2, Karachi, therefore, he was of the view that the said offered which is equivalent to the decretal amount may be accepted. During the course of argument, counsel of the appellant has reiterated the same facts and grounds which he has urged in his application under Order XXXVII, Rule 3, C.P.C. As well as in his Memo of Appeal, however, in support of his arguments he has placed reliance on the following case-law:--
(1) Sher Ali Akhtar v Messrs Habib another (1992 560) v. Muhammad Bank Limited and CLC 1964)
(2) Manzoor Ahmed Igbal (1994 SCMR Agha Jee Cotton Factory v. Hakim Trading Company Rahimyar Khan (1995 CLC 302)
(3) Hazoor Bakhsh v. Ghulam Farid (1996 MLD 704)
(4) Syed Sharaf All Shah v. Syed Liaquat Ali Shah (2000 CLC 1646)
(5) Zahoor Ahmed v. Asif Hussain (2001 MLD 1759 Peshawar)
(6) Balooch Akbar Khan v. Muhammad Hussain and another (2004 CLC 356)
(7) Muhammad Ali Nawaz v. Sh. Muhammad Aslam (PLD 2010 Lahore 219)
7. Conversely, learned counsel for the respondent No,1 has controverted . The submissions made by learned counsel for the appellant and submitted that instant appeal has been filed only to gain time and to get undue benefit of the money to be paid by the appellant so also to prolong the execution of the decree passed by the learned trial Court. Per learned counsel, the trial Court after having considered all assertions made by the appellant, passed the judgment and decree, which is according to him passed in accordance with law leaving no room of illegality or infirmity. He has further submitted that the appellant has also violated the order of this court dated 12-11-2013 directing him to deposit the decretal amount within month before the Nazir of this court but instead of depositing the decretal amount, one Sohail Ahmed son of Bukhsh Illahi offered security for appellant in the sum of Rs,48,25,000 by depositing Indenture of Lease in respect of Flat No,602-B, 6th Floor, measuring 350 Square Feet on Plot No,111, Roshan Colony, Manikji Road, Soldier Bazar No,2, Karachi, which cannot be equated to the decretal amount. He has further submitted that the appellant has not complied the order of the trial Court dated 26-4-2013, therefore, he was of the view that this appeal is not maintainable which may be dismissed. In support of his argument, he has relied upon the following judgment:
(1) Muhammad Ramzan and others v. Ghulam Qadir (2011 SCMR 659)
(2) Muhammad Jaffar v. The State (PLD 1984 Karachi 127)
(3) Iftikhar Ahmad v. Muhammad Younus Khan (1982 CLC 2114)
(4) Messrs Industrial Air Control (Pak) (Pvt.) Limited, Karachi and 2 others v. Messrs Alpha Insurance Company Ltd. (1994 CLC 1526).
8. I have considered the contentions raised at the bar and also perused the material available on record. It is an admitted fact that respondent No,1 filed Summary Suit under Order XXXVII Rule 2 of C.P.C. For recovery of Rs,48,25,000 against the appellant. During pendency of the case an application under Order XXXVII Rule 3 C.P.C. Has been filed by the appellant for permission leave to appear and to defend the suit. Upon this application the learned trial Court vide her order dated 26-4-2013 passed the order granting leave to appear and defend the suit subject to furnishing security for the suit amount before Nazir of the Court within 15 days. For the sake of convenience, it would be proper to reproduce the said order which reads as under:-- "Heard learned counsel for the parties and have perused the record. From perusal it reveals the matter requires evidence despite of it the application in question has been filed after about 28 days after service of notice. But the matter requires adjudication on merits, hence the leave is granted subject to the furnishing security for the suit amount before the Nazir of the Court within 15 days."
9. From the record it also appears that the said order has not been complied within the stipulated period, however, an application for extension of time filed by the appellant dated 25-5-2013, which was dismissed vide her order dated 31-5-2013.
10. I have gone through the order dated 26-4-2013, which was to be complied with till 11-5-2013 but extension of application for grant of further time was filed on 25-5-2013 even after expiry of more than 12 days for which no cogent reason has been furnished. It is well-settled law that the person who did not obey the lawful order of the Court, has no right to remain present before the Court and contest the matter. Admittedly, the appellant has failed to comply with the order of the trial Court, therefore there was every justification with the trial Court to pass judgment an decree in favour of the respondent No,l.
11. I have also gone through the order of this Court dated 12-11-2013 by which the appellant himself was agreed to deposit the decretal amount with the Nazir of this Court within one month, for the sake of convenience, it would also be proper to reproduce the said order which reads as under:-- "12-11-2013.
' Mr. R. Masood Ahmed Qazi, Advocate for the appellant.
' Mr. Ch. A. Rasheed, Advocate for the respondent No,l.
' Learned counsel for the appellant categorically stated that appellant is ready and willing to deposit the decretal amount with the Nazir of this Court such request is not opposed by counsel for the respondent.
' Consequently, the appellant is directed to deposit the decretal amount within one month positively. In case the amount is not deposited with such stipulated period then the instant civil appeal may be dismissed for non-prosecution. Adjourned."
12. Admittedly, this order has also not been complied by the appellant in its letter and spirit, however, as per report of the Nazir of this Court dated 20-12-2013, which shows that appellant has offered security by depositing Indenture of Lease in respect of Flat No,602-B, 6th Floor, measuring 350 Square Feet on Plot No,111, Roshan Colony, Manikji Road, Soldier Bazar No,2, Karachi, which has been seriously opposed by the respondent No,1 by arguing that the said offer cannot be equated with the deposit of decretal amount. Order XXXVII C.P.C. Provides special procedure to be followed in suits covered by rule 2 and the object of the summary procedure is to provide efficacious remedy and to avoid prolong litigation.
13. Perusal of record shows that the appellant neither complied the order of the trial Court nor has complied the order passed by this Court, therefore, it is evident from the record that this appeal has been filed only to gain the time and to get undue benefit of the money to be paid by the appellant and further to prolong the execution of the decree passed by the learned trial Court. I have gone through the case of Iftikhar Ahmad v. Muhammad Younus Khan (1982 CLC 2114). In this case-law, similar situation was discussed and it was held as under: "In the instant case it is an admitted position that the appellant did not avail of the matter in the leave which was granted by the consent of the respondent as he has failed to furnish surety acceptable to the court. In this view of the matter the learned District Judge was entitled to pass a decree on the basis of averments contend in the plaint. A Court is required to give reasons under Order XX, Rule 4 when the parties are at issue, which was not the case in the instant case."
' Also in the case of Allied Bank of Pakistan v. V.C. Khilanani and 2 others (PLD 1994 Karachi 127), Saleem Akhtar, J... (as his lordship then was) observed as under:- "Therefore, in a case where leave has been granted on certain conditions and defendant does not fulfil the conditions the leave granted to him will not be operative. In such circumstances, as well as where the defendant does not appear and apply for leave to defend, the Court is empowered to decree the suit taking the averments made in the plaint to be admitted."
14. As observed above, the appellant has deliberately and wilfully flouted the order of this Court as well as of the trial Court and it is settled law that he who seeks equity must do equity, equity moves in the aid of law and not to defeat law and it is also settled position of law that equitable relief could not be granted to the person whose claim rest upon illegality or on mala fide.
15. In the instant case no plausible argument has been offered by the appellant to prove his contentions, therefore, the case-law cited by him which has been perused and considered by me but did not find applicable to the facts of the present case, therefore, the same is not helpful for him.
16. In view of the above discussion I do not find any merit in the above appeal and hence the same is dismissed along with listed application, but there will be no order as to costs.