MASUD ABID NAQVI, J. Brief facts of this regular first appeal are that the respondent No.2 filed a suit for recovery of Rs.13,00,000/- against the appellant/defendant wherein application for leave to appear and defend the suit was filed by defendant/appellant which was accepted subject to submission of surety bond equal to suit amount vide order dated 18.01.2016. The defendant/ appellant appeared and filed leave to appear and defendant the suit, which was accepted subject to deposit of surety bonds to the tune of suit amount vide order dated 18.01.2016. However, despite availing several opportunities, the suretybond to the satisfaction of trial court was not filed by the defendant/appellant and consequently the suit was decreed vide judgment and decree dated 03.03.2016. Feeling aggrieved, the appellant/defendant has filed the instant appeal and challenged the validity of the judgment and decree passed by the learned trial court.
2. It is contended by the learned counsel for the appellant/defendant that the impugned order is against law and facts and without taking into consideration that valuable rights of the appellant/ defendant are involved in the matter, who should be given an opportunity to contest the suit. He has further argued that law favours the adjudication on merits instead of technicalities. It is also contended by the learned counsel for the appellant that the circumstances were out of control of the appellant/defendant, therefore, the appellant could not file surety bond. He has prayed for acceptance of the instant appeal and setting aside of the impugned judgment and decree dated 03.03.2016 passed by the learned trial court.
3. I have heard the arguments advanced by the learned counsel for the appellant and minutely gone through the impugned judgment and decree as well as the record.
4. Perusal of record reveals that a suit for recovery of Rs.13,00,000/- was instituted by the respondent/plaintiff wherein the defendant/appellant entered appearance and his application for leave to appear and defend the suit was accepted subject to submission of surety bond equal to the suit amount vide order dated 18.01.2016. On 26.01.2016, the case was adjourned and absolute last opportunity was granted to submit surety bond. On 04.02.2016, appellant/defendant failed to furnish surety bond inspite of caution of last and final opportunity but in the interest of justice learned trial court adjourned the case with a direction that no further adjournment will be granted on the next date- of hearing. On 11.02.2016, surety bond was furnished but it was rejected being invalid and further adjournment was granted with caution of last and final opportunity to furnish surety bond to the satisfaction of the trial court, however, the surety bond was not filed by the defendant/appellant. The appellant's conduct was very much contumacious. He tried not to comply with the order of the learned trial judge through different tactics and ultimately the learned trial judge had no option but to decree the suit as the appellant's application for leave to appear and defend the suit was accepted conditionally. The learned trial judge gave the appellant sufficient time to comply with his -earlier direction. The appellant, on the contrary instead of complying with the same, unnecessarily involved the respondent in this uncalled for litigation. His conduct as determined by the trial court was certainly contumacious and no illegality whatsoever has been committed by the trial court. Hence, the learned trial court had no other option than to pass the impugned judgment and decree dated 03.03.2016 and decreed the suit While dealing with identical matter, the Hon'ble Supreme Court of Pakistan in case reported as titled "Haji Ali Khan and Company, Abbottabad and 8 others v. Messrs Allied Bank of Pakistan Limited, Abbottabad (PLD 1995 Supreme Court 363) held as under:
10. The ratio decidendi of the above referred cases seems to be that if a defendant fails to appear or fails to obtain leave to defend in response to a summons served in form No.4 provided in Appendix B to the C. P. C. or fails to fulfil the condition on which leave was granted or where the Court refuses to grant leave, the Court is to pass a decree. It may further be observed that in sub- rule (2) of rule 2, C.P.C., it has been provided that if a defendant fails to appear or defaults in obtaining leave, the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree, but no such consequences are provided for in rule 3 of the above Order in a case where the Court refuses to grant leave or the defendant fails to fulfil the condition on which leave was granted. In our view, notwithstanding the above omission in Rule 3, the effect of refusal of the Court to grant leave or failure on the part of the defendant to comply with the condition of the leave, will be the Same i.e. the defendant shall not be entitled to defend the suit on any ground and the Court would pass a decree in favour of the plaintiff.
Reliance is also placed on Murtaza Haseeb Textile Mills v. Sitara Chemical Industries (2004 SCMR 882).
5. In view of the foregoing discussion, this Court is of the affirmed view that learned trial Court has rightly proceeded in the matter. The impugned order does not suffer from any infirmity, legal or factual, requiring interference, therefore, this appeal is dismissed.