' MUHAMMAD IQBAL KALHORO, J.---The appellant has challenged the order dated 28-01-2013 and decree dated 11.02.7.013, passed by the learned IInd: Additional Sessions Judge, Hyderabad in summary Suit No. 38 of 2012 filed by respondent No.2 ("Respondent"), whereby the application of appellant seeking further time to furnish security in terms of order dated 19.12.2012 granting leave to defend was dismissed, resulting in decreeing the suit.
2. The facts, stated in brief here, leading to the filing of instant appeal are that the respondent filed a summary suit for recovery of Rs.20,00,00,000/(Rupees twenty crores) against the appellant stating therein that he and the appellant had good cordial relationships with each other. On 2.9.2011, the appellant came to his house and after having dinner disclosed that he had purchased an area of four acres from ' Nakaboli land of S.Nos.171 and 172 deh Gujro Taluka Karachi West Gulshan-e-Iqbal where he intended to launch a' Housing Scheme, which he needed financial assistance of Rs,20 crores for the period of six months against which he was ready to furnish any guarantee of respondent's choice. The respondent after consultation with his family members informed the appellant on 5.9.2011 on phone that within a span of two months in two equal installments the required amount of Rs,20 crores could be given to him against security and promissory note to which he agreed. In pursuance whereof on 6.11.2011 at the house of respondent in presence of witnesses namely Muhammad Hassan and Hassan Ali, cash amount was handed over to the appellant against an advance/pre-posted cheque of Rs,20 crores dated 30th June, 2012 bearing No,115291106 of Habib Bank Limited, Badin and a promissory note duly stamped for Rs,10 crores. The second installment of Rs,10 crores was handed over to the appellant on 7.12.2011 in presence of witnesses against duly stamped promissory note worth Rs,10 crores. The cheque on due date was deposited by the respondent in his account in Allied Bank Saddar Branch, Hyderabad, but the same was dishonored with remarks "funds are insufficient". The respondent tried to contact with the appellant but in vain and seeing no other way, he filed the above stated summary suit against him.
3.After service, the appellant filed application under 0. XXXVII, R.3, C.P.C. on 4.9.2012 seeking leave to appear and defend the suit. In the application, the appellant denied in toto the case of the respondent. He denied having any relations with the respondent or on the basis of any such relationship he had obtained any amount from him. The appellant also denied to have executed any promissory note or issued a cheque of Rs,20 crores in favour of the respondent. Relating to his original NIC and leaf of subject cheque, his plea was that both were lost by him and due report in that regard was submitted by him before the quarters concerned.
4.Learned trial Court after considering the case of the appellant in terms of order dated 19.12.2012 granted him leave to defend the suit subject to furnishing security equivalent to the amount involved within fifteen days. The appellant however, at the expiry of time moved an application for extension of time for furnishing requisite security, which was granted to him. On 21.01.2013 he moved yet another application for the same purpose that was taken up for hearing on 28.1.2013 and after hearing the parties, learned trial Court passed the impugned order dismissing the application of the appellant for extension of the time and resultantly decreeing the suit as prayed with costs.
5.Being aggrieved by and dissatisfied with the impugned order, the appellant has preferred the instant appeal. Vide order dated 26.11.2014 the appeal was admitted subject to furnishing security/bank guarantee. The appellant however, instead of complying with the order challenged the same before the Honorable Supreme Court of Pakistan in C.P.L.A. No,103-K of 2015. Learned counsel for the appellant during arguments admitted that so far the appellant was not able to obtain any restraining order causing an impediment to hearing of this appeal on its own merits, he also confirmed on query that notice to the respondents was not yet issued. His contentions on merits of the case were that the learned trial Court had not considered the averments of the application for leave to appear and defend the suit filed by the appellant properly and in accordance with settled provisions of law. The very claim of the respondent of extending the loan of Rs, 20 crores to the appellant was frivolous on the face of it as in the era such as the present one when people were facing severe financial crises, it could not be imagined that a person on the basis of merely some acquaintance would give Rs,200 million as loan. That the learned trial Court ought to have granted further time to the appellant to furnish requisite security as the amount involved was not a petty figure that could have been arranged for in a short time.
6.Mr. Jagdesh R. Mullani, counsel for the respondent vehemently refuted the above contentions. His first objection was over the timings of filing the instant appeal. He pointed out that impugned order was passed on 28.1.2012 in pursuance thereof the decree was drawn on 11.2.2013 which could have been challenged within a period of ninety days in terms of Article 156 of the Limitation Act; 1908 but the appeal in hand was filed on 11.11.2014 after about twenty months hence was hopelessly time barred. Another aspect of the case which found variance with him was the factum of 1st Appeal No, 24 of 2013 earlier filed by the appellant against the impugned order on 11.3.2013 and its subsequent unconditional withdrawal by him on 13.01.2015. He stated that the appeal in hand was misconceived in the sense that the decree on the statement of the appellant filed in executing proceedings with his consent had already stood satisfied and land admeasuring 4 acres in survey Nos. 171 and 172 deh Gujro Taluka Karachi West Gulshan-e-Iqbal had been mutated in favour of the respondent vide entry No, 18 dated 13.8.2014. The appellant himself was part of every step that culminated finally on realization of decree to the entire satisfaction of the respondent. He concluded his arguments by making a request to dismiss the appeal with heavy cost.
7.Heard counsel and perused the record. The summary suit filed for recovery of amount in question by the respondent was decreed by the learned trial Court on failure of the appellant to fulfill the condition stipulated in the order dated 19.12.2012, whereby he was granted leave to appear and defend the suit. The said leave granting order was not challenged by the appellant instead he preferred applications seeking extension of time to do the needful. Ultimately his effort was turned down by the learned trial Court resulting in passing of the impugned order and decree. The main feature or (for the sake of legal parlance) the ground in the appeal in hand is doubt expressed by the appellant over odds of the subject incident, that is, giving the amount of Rs,20 crores to him by the respondent in the context iterated therein. He has emphasized it to be unreal and far from natural disposition of people in this country. However, in my view certain questions raised by the learned counsel for the respondent need to be answered before making any commentary on the above suspicion shown by the appellant. In the said context I may mention here that in the suit under summary chapter, it is always discretion of the Court to grant leave to defend the suit either unconditionally or conditionally, that discretion has to be exercised judiciously is a well established creed of law. The purpose behind the scheme appears to be empowering the Court to strike balance between A the two situations i.e, where triable issues are raised by the defendant, unconditional leave to defend may be granted or where the defense is presented with the sole object of gaining time, the Court may insist on some condition. Should the stipulations so required are not complied with, leave granting order would not come into force leaving a very limited choice to the Court to act otherwise than decreeing the suit after considering merits of the case.
Nonetheless, the Court can still dismiss the suit when it is not satisfied regarding bona fide of the claim or otherwise merits of the case. Although the leave granting order is not appealable but where the discretion has been exercised arbitrarily and capriciously by the Court the aggrieved one can competently assail it in revision. The appellant's defense of total denial was considered in its peculiar surroundings by the learned trial Court and he was granted conditional leave to defend, the condition envisaged in the order however, did not appear to ripple him to challenge it before any forum. In fact complacency in assailing the leave granting order shown by the appellant largely amounted to his acquiescing in it to the extent of condition stated therein. For no other explanation could be gathered under the circumstances. The Honorable Supreme Court while dealing with two different cases titled as Aftab Iqbal Khichi and another V. Messrs. United Distributors Pakistan (1999 SCM R 1326) and Col. (Retd.) Ashfaq Ahmed and others v. Sh.
Muhammad Wasim (1999 SCM R 2832) on the same question has expressed the view that it is obligatory upon the defendant to make arrangements for defense of the suit and effect of his failure to fulfil the condition shall result into his disentitlement to defend the suit on any ground and the Court in such eventuality would pass a decree in favour of the plaintiff. The dicta laid down by the Apex Court was followed by the learned Lahore High Court in the case of Haji Muhammad Siddique v. Rana Muhammad Sarwar (2003 CLD 1003), wherein the order of the trial Court decreeing the suit on failure of defendant to fulfill the condition was upheld. A perusal of the impugned order reveals that the learned trial Court initially granted fifteen days time to the appellant to furnish security to defend the suit but he at the expiry of stipulated time sought for extension in the time which was also acceded to. The applicant again moved the application for the same purpose on 21.01.2013 which was taken up on 28.01.2013 and after having had a hearing on it, learned trial Court dismissed the same and simultaneously decreed the suit as a result thereof.
While passing the impugned order it appears that the leaned trial Court over and above the factum of non-compliance of the stipulated condition considered the relevant documents filed in the suit and (though not required) the essence of defense of the appellant. Findings recorded therein are not illegal or contrary to the mandate of law governing the situation as discussed above. On this score I do not find any merit in the appeal.
8. Yet another aspect of the case which does not skip attention of this Court is that the appellant had filed a Civil Appeal No, S 24 of 2013 against the impugned order before this Court which was subsequently withdrawn unconditionally on 13.1.2013. During arguments when a question was asked from the learned counsel for the appellant how in presence of such unconditional withdrawal of earlier appeal against the impugned order the applicant could maintain this appeal, he referred to an affidavit filed by the appellant on 23.04.2015 (which is available in the file) and stated that the appellant had not engaged the counsel who had withdrawn the earlier appeal. I have seen the affidavit, though it is not happily worded however obvious evasiveness therein is conspicuous.
Neither the factum of filing earlier appeal is denied therein nor does it speak out about any action taken by the appellant against the counsel in the face of his unconditional withdrawal of earlier appeal without his explicit consent or permission. On the contrary it seeks to introduce some new material which insofar as purpose of instant appeal is concerned is totally irrelevant. In view of the unconditional withdrawal 'of earlier appeal, I am of the view that the appellant cannot maintain the present appeal under the law. The contention of learned counsel for appellant that the earlier appeal was withdrawn without consent of the appellant, therefore is simply not appealable to the common sense, as besides the above observations I have failed to understand as to why until now appellant has not moved any application before this Court in his earlier appeal agitating the same point and seeking some compensatory order for bringing his appeal to life. Non-mentioning the factum of earlier appeal against the impugned order by the appellant in the instant appeal filed at the principal seat of this Court at Karachi (sent to this Court at Hyderabad by the order of Honorable Chief Justice on office note dated 15.11.2014) points to a deliberate design at his behest to conceal facts. On this account also I find the present appeal devoid of any merits. Learned defense counsel had drawn my attention to a statement filed by the appellant in the executing proceedings on 5.3.2014 requesting the Court to attach his property viz. 04 acres land (described above) and sell the same to satisfaction of decretal amount. It appears that on that application learned Executing Court appointed Accountant District Court, Hyderabad to initiate proceedings for selling the property of the appellant through public auction. However before the auction could be materialized, a joint statement dated 14.03.2014 was filed by the parties in the Executing Court to the effect that the appellant had agreed to transfer his above stated land in favor of the respondent to satisfy the decretal amount that was disposed of by the Court with observation that "<b><i>If the land in question is verified to be of J/D, it may be transferred/Mutated in the name of D/H in accordance with law and copy whereby may be sent to this Court for record.</i></b>" In pursuance thereof, entry No,18 dated 13.08.2014 in Deh Form No, II was kept in favor of the respondent and statement dated 26.08.2014 to that effect was filed before the Executing Court on his behalf by his counsel. It was also informed to the learned Court through that statement that the decree was satisfied. It is also a matter of record that the appellant, after the decree stood satisfied has not made any communication with the learned Executing Court to question validity of the statement showing satisfaction of the decree.
9. The record bears testimony that the appellant since beginning behaved like an indolent who never cared about his responsibility and after losing the legal battle before the trial Court, he acquiesced to depart from his property in favour of the respondent in executing proceedings and finally when his acquiescence got acted upon and relevant entry was kept, he has made another attempt through the present appeal to save what he could have, had he been a little vigilant.
10.For what has been discussed above, appeal is found meritless and is hereby dismissed accordingly with no order as to cost.