MUHAMMAD FAHEEM WALI J. Appellant through this Regular First Appeal, filed under Section 96 of the Code of Civil Procedure (Act-V) 1908, has called in question the vires of Judgment and Decree dated 29.05.20108 passed by the learned Additional District Judge-I, D.I.Khan, whereby the learned trial Court, owing to the failure of appellant (then defendant) in submission of security bond, a condition for the grant of leave to appeal, decreed the summary suit for recovery of Rs. 15,85,000/- in favour of respondent/plaintiff within the purview of Order XXVII, Rule 2 of C.P.C.
2. Facts forming factual canvas of this appeal are that the respondent/plaintiff instituted a summary suit under Order XXXVII, C.P.C. against appellant/defendant for recovery of Rs.15,85,000/- along with profit at bank rate on the basis of promissory notes dated 25.08.2014 for sum of Rs.120,000/-, dated 10.08.2015 for sum of Rs.420,000/-, dated 21.09.2015 for sum of Rs.1,000,000/- coupled with court fee Rs. 15,000/- and counsel fee Rs.30,000/-. The suit was initially decreed in ex- part of appellant; and thereafter his applications for setting aside ex-parte decree and leave to defend the suit stood dismissed. However, in Civil Revision No.124-D/2014, this Court vide Judgment dated 11.01.2018 remanded the case back to the learned trial court with the direction that the application for leave to defend the suit shall be deemed to be pending and be decided on merits according to law. On receiving the case file after remand, the learned trial court vide order dated 12.03.2018 allowed the application for leave to defend the suit subject to furnishing security bond in the sum of Rs. 15,00,000/- with two sureties. The appellant defendant evaded to furnish the required security bond and accordingly, vide order dated 14.05.2018, he was afforded with last opportunity to submit the required security bond, failing which the case will be decided in accordance with law. Finally, vide impugned order dated 29.05.2018, due to failure of appellant in submitting the required surety bond, decreed the suit of respondent/appellant as prayed for in accordance with the provisions of Order XXXVII, Rule 2 of C.P.C. Hence, the instant appeal before this Court.
3. Learned counsel for the appellant argued that appellant has not been given proper opportunity of defence and he wanted to file the requisite security bond but same was delayed due to strike of Patwaris, and as such, the appellant was not able to get the Fard of the properties of sureties. He next argued that Rule 2 of Order XXXVII of C.P.C. does not contain any penal provisions enabling the Court to recall the order as to grant of leave to defend as leave once granted cannot be withheld; and finally he prayed for acceptance of the instant appeal.
4. To the contrary, learned counsel for respondent/plaintiff argued that the issue involved in the present case pertains to the provisions of Rule 3 of Order XXXVII, C.P.C. and noncompliance thereof would ultimately attract Rule 2 of the said Order of C.P.C. and he prayed for the dismissal of present appeal.
5. There is no cavil to the fact that vide order dated 12.03.2018 the appellant (then defendant) was allowed to defend the suit subject to security bond in the sum of Rs. 15,00,000/- with two sureties.
On the following dates i.e. 31.3.2018, 14.04.2018, 2104.2018 and 15.05.2018 appellant repeatedly sought time to submit the surety bonds, however, learned trial Court on 15.05.2018 afforded the appellant with last opportunity to submit the requisite bond till the next date i.e. 29.05.2018 otherwise, the court would have no other option but to dispose of the case in accordance with law. On the subsequent date too, i.e. 29.05.2018, the appellant was unable to submit the requisite bond, and as such, the learned trial court decreed the suit under Order XXXVII, Rule 2, C.P.C.
6. In view of the rival contentions raised by the learned Counsel for the parties, a short but important question that crops up for determination is whether the impugned order of learned trial Court is in accordance with the provisions of Rule 3, Order XXXVII, C.P.C. or is invalid within the purview of Rule 2 of the ibid Order of C.P.C.
Before I proceed to answer the question aforesaid, I may briefly consider the scheme of Order XXXVII, C.P.C, Order XXXVII deals with summary procedure and its Rule 2 is enabling provision, which deals with institution of summary suit. According to it, summons of the suit is to be issued first and when the defendant appears, he has to obtain leave by the Court to defend the suit. Detailed procedure for the appearance of defendant is provided in Orders XXX, VII, Rule 3, C.P.C., which shows that in the matter of grant of leave to defend with condition or without condition, the Court has been given discretion in the matter of attaching condition to the grant of leave to defend. In this regard provisions of Rules 2 and 3 of Order XXXVII, C.P.C. read as under:
2. Institution of summary suits upon bills of exchange, etc. (1) All suits upon bills of exchange, hundies or promissory notes, may, in case the plaintiff desires to proceed hereunder, be instituted by- presenting a plaint in the form prescribed; but the summons shall be in Form No. 4 in Appendix B or in such other form as may be from time to time prescribed.
(2) In any case in which the plaint and summons are in such forms, respectively the defendant shall not appear or defend the suit unless he obtains leave from a Judge as hereinafter provided so to appear and defend, and, in default of his obtaining such leave or of his appearance and defence in pursuance thereof, the allegations in the plaint shall be deemed to be admitted, and the plaintiff shall be entitled to a decree:-
(a) for the principal sum due on the instrument and for interest calculated in accordance with the provisions of section 79 or section 80, as the case may be, of the Negotiable Instruments Act, 1881, up to the date of the institution of the suit or for the sum mentioned in the summons, whichever is less, and for interest up to the date of the decree at the same rate or at such other rate as the Court thinks fit; and
(b) for such subsequent interest if any, as the Court may order under section 34 of this Code; and
(c) for such sum for costs as may be prescribed: Provided that, if the plaintiff, claims more that such fixed sum for costs the costs shall be ascertained in the ordinary Way.
(3) A decree passed under this rule may be executed forthwith.
3. Defendant showing defence on merits to have leave to appear. (I) The Court shall, upon application by the defendant, give leave to appear and to defend the suit, upon affidavits which disclose such facts as would make it incumbent on the holder to prove consideration, or such other facts as the Court may deem sufficient to support the application.
(2) Leave to defend may be given unconditionally or subject to such terms as to payment into Court, giving security, framing and recording issues or otherwise as the Court thinks fit.
(3) The provisions of Section 5 of the Limitation Act, 1908 (IX of 1908) shall apply to applications under sub-rule (1).
8. The above quoted provisions of sub-rule (2) of Rule 3 enable the Court that leave to defend may be given unconditionally or subject to such terms as to payment into Court, giving security, framing and recording issues or otherwise as the Court thinks fit. Undeniably, in the I instant case, the leave granting order in favour of appellant/defendant was not a full and final order rather it was conditional and its perpetuity was subject to fulfilment of condition i.e. deposit of security bond worth Rs.I5,00,000/- with two sureties. In other words, order granting leave to defend the suit could only be pressed into service when imposed condition was to be fulfilled by the defendant, otherwise, it would be deemed that no leave to defend has been granted. The main argument of the learned counsel for appellant was that once leave granted cannot be recalled, and this Court too is in agreement with the contention of learned counsel for appellant but in the instant case, as aforementioned, the leave was not granted outrightly rather the same was subject to fulfilment of condition, which condition has not been fulfilled.
9. The failure of appellant in submission of security bond, a pre-condition for leave to defend, amounts to default in obtaining leave to defend the suit and same automatically pushed the case back to the C domain of Rule (2) of Order XXXVII, C.P.C. which. in case of default of defendant in obtaining leave to defend, enable the Court to pass a decree in favour of plaintiff. Worthy apex Court in the case of "Haji Ali Khan & Company, Abbottabad and 8 others v. Messrs Allied Bank of Pakistan Limited, Abbottabad" (PLD 1995 Supreme Court 362) was pleased to observe:
10. The ratio decidendi of the above-referred cases seems to be that if a defendant fails to appear or fails to obtain leave ta defend in response to a summons served in Form No.4 provided in Appendix 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 However, this does not necessarily mean that the Court is not required to apply its mind to the facts and the documents before it.
Every Court is required to apply its mind before passing any order or judgment notwithstanding the factum that no person has appeared before it to oppose such an order or that the person who wanted to oppose was not allowed to oppose because he failed to fulfil the requirements of law.
10. The same was further reiterated by the, august Court in the case of "Col. (Retd.) Ashfaq Ahmad and others v. Sh. Muhammad Wasim"(1999 SCMR 2832).
11. As far the contention of learned counsel for appellant that due to strike of patwaris Fard of property could not be obtained so that the same may be annexed with the bond as a proof of financial reliability of sureties; suffice it to say that if such was the condition, then there was no restriction on the appellant to present the sureties and bond before the Court to show his bona fide and request for adjournment for production of property documents of sureties. Perusal of order sheets of the learned trial court reveal that on each date of hearing the appellant sought simple Adjournments which cannot justify his conduct. In this regard, in the case of "Murtaza Haseeb Textile Mills v. Sitara Chemical Industries" (2004 SCMR 882), the suit of plaintiff, upon failure of defendant to submit the requisite surety bond, stood decreed by the learned trial Court, the appeal of defendant was dismissed by the learned Division Bench of the Lahore High Court, Lahore, and august Supreme Court of Pakistan also maintained the decree by holding that: "---A perusal of the decree passed by the learned trial Court demonstrates that the petitioner'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 petitioner failed to comply with the direction. The learned trial Judge gave the petitioner sufficient time to comply with his earlier direction. The petitioner, 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 learned Division Bench of the Lahore High Court in dismissing the appeal through the impugned judgment.'
12. Considering the facts and circumstances of the case, legal position and arguments advanced by learned counsel for parties, and on perusing the typed-set of papers and the views of this Court as expressed hereinabove, it is held that the learned trial committed no illegality or irregularity in passing the impugned decree, rather is the same is fully in accordance with the provisions of Order XXXVII, C.P.C. and cannot be interfered with. Consequently, the appeal in hand stands dismissed leaving the parties to bear their own cost.