' The respondent instituted a recovery suit for a sum of Rs,21,000 before learned District Judge, Jhang, under Order XXXVII, Rules 1 and 2, C.P.C. Basing his claim on a promote allegedly executed by the respondent in his favour qua the said amount. The appellant appeared and sought permission to defend the suit. Conditional leave to defend was granted subject to furnishing security of the amount in question, before 4-12-1990.
2. On 4-12-1990 when the case was called out it is stated that the appellant having fallen ill in the meantime, the requisite security could not be furnished and this fact was brought to the notice of the learned District Judge. He, however, did not feel satisfied for extension of time called for and proceeded to dispose of the suit by decreeing the same as prayed for.
3. The appeal was admitted to regular hearing on 4-3-1991. It was also directed on the said date that subject to furnishing security to the satisfaction of the Executing Court the execution of the impugned decree shall remain stayed. This order, according to the learned counsel for the appellant, has since been complied with.
4. The case was listed for hearing on 18-5-1992. On the said date the respondent-decree-holder made an offer that the case be disposed of on statement on oath to be made by the appellant in regard to his (respondent) right to recover the amount. The appellant who was present in person accepted this offer. The parties were directed to appear personally on 9-6-1992 so that the proposed oath may be executed.
5. On 9-6-1992, the case could not be listed and it came up for hearing on 29-6-1992 when the parties were directed to appear for any date soon after vacation. Case was listed for hearing on 29-9-1992. On the said date the appellant appeared in person and so did the respondent. The appellant reiterated his acceptance of the offer of the respondent and wanted to take the requisite oath but it was at that stage that the respondent backed out. Since the Court time was about to be over, I passed an order adjourning the case to 7-10-1992 for further proceedings.
6. Today I enquired from the learned counsel for the respondent as to whether or not the respondent still stood by his offer to be hound by the oath of the appellant. His reply was that the respondent on reconsideration has changed his mind and now would be prepared to be bound by oath of one of the relations of the appellants to be indicated by him. Thus the entire exercise, in this behalf, has ended in fiasco.
7. Coming now to the merits of the case, I find force in the submission of the learned counsel for the appellant that in the circumstances of the case the learned District Judge should have granted an opportunity to the appellant to furnish the requisite security. From the grounds of appeal I find that there is an averment to the effect that the appellant fell seriously ill and due to this shortage of time he could not furnish the security. Perusal of the impugned judgment shows that the learned District Judge has not dealt with the specified plea of illness taken by the appellant seeking extension of time. All that is mentioned in the impugned judgments is that counsel for the appellant was enquired as to why the requisite security had not been furnished but he had failed to give a satisfactory reply. In my view, this is not the correct approach for disposal of the matter in hand.
The learned District Judge should have specifically dealt with the plea of aliment advanced by the appellant and in case he was not satisfied with the oral submissions made in this behalf, should have granted an opportunity to produce proof of ailment. Law leans in favour of adjudication on merits. It was, therefore, not just and proper that the plea for extension of time for furnishing the security should have been disposed of by making general observation that satisfactory explanation regarding failure to do the needful was not forthcoming.
8. In this view of the matter, there is no option but to accept this appeal, set aside the judgment and decree of the learned trial Court and remand the case for trial. Since, as per statement of the learned counsel for the appellant, during the pendency of the appeal before this Court, the requisite security has been furnished, therefore, it is directed that the said security shall be retained on record by the learned District Judge. The trial shall now proceed on merits and the parties will be given opportunity to lead evidence, in respect of their pleas before pronouncing of judgment.
No order as to costs.