RAJA MUHAMMAD SABIR, J.---The present appeal arises out of the judgment and decree dated 7- 7-1996 passed by the learned District Judge, Rawalpindi, whereby he decreed the .Suit of the respondent instituted under Order 37, C.P.C. For recovery of Rs.80,00,000 (Rupees Eighty Lacs) with costs and profit at the rate of P.L.S. Account cf any scheduled bank, till realization of. Whole decretal amount.
2. Brief facts of the case are that on the basis of loan advanced by the respondent on 6-2-1995, the appellant issued post-dated Cheque No.CA--50/A/134431- Account No.894-4 amounting to Rs.50,00,000 (Rupees Fifty Lacs) in respect of Muslim Commercial Bank, Liaqat Road Branch, Rawalpindi and another cheque was also issued by him bearing No.CA-50/A/134432 amounting to Rs.30,00,000 (Rupees Thirty Lacs) for return of the principal amount advanced to him. It was also settled that if the advanced amount was not paid or the said cheques dishonored then toe respondent /plaintiff will have right to get attached the running bills of the appellant/defendant and to get attached the other movable and immovable property, of the appellant/defendant including other bank accounts.
3. In response to suit filed by the respondent on 12-4-1995, the appellant appeared before the Court on 4-5-1995. And the case was adjourned for 17-5-1995 for submission of reply to the application under Order 38, Rule 5, C.P.C. On 17-5-1995 and 1-6-1995 the reply was not submitted and the case was adjourned for 20-6-1995. On the said date the reply was submitted by the defendant/appellant and the case was adjourned for arguments on the said application for 12-7- 1995. On 12-7-1995 the learned District Judge, Rawalpindi was on leave and the case was adjourned for 4-9-1995 for arguments on the said application. On 4-9-1995, learned counsel for the defendant sought adjournment and the case was adjourned for 2-10-1995. On 2-10-1995 the learned District Judge was again on leave and the case was adjourned for 15-10-1995. On the said date, too, the learned District Judge was on leave and the case was adjourned for 2-11-1995. On 2- 11-1995 Mr. Anees ul Haq, Advocate filed his power of attorney on behalf of the defendant/appellant and, requested for adjournment, as he was engaged only on that day. The case was adjourned for 15-11-1995. On that date the case was further adjourned for 28-11-1995 on the request of learned counsel for the plaintiff/respondent. On 28-11-1995 last opportunity was given for arguments on the said application because on the said date learned counsel for the plaintiff was not present, and the case was adjourned for 17-12-1995. On the said date arguments were heard on application for leave to defend the suit and the case was adjourned for orders on 18-12-1995. On 18-12-1995, learned District Judge permitted the appellant to defend the suit subject to furnishing surety bond before the Court in the sum of Rs.80,00,000 (Rupees Eighty Lacs) and it was also ordered that the appellant shall submit surety bond and written statement on 21-1-1996. In-between that period on 16-1--1996 the appellant produced surety bond in the trial Court, which was neither expressly accepted nor rejected. On 21-1-1996, it was observed by the learned District Judge that the surety bond has been filed while the written statement has not been filed. A request for adjournment for filing the written statement has been made by the appellant and accordingly the case was adjourned to 7-2-1996.
4. On 7-2-1996, the written statement was filed and the case was fixed for framing of issues and submission of reply on the application submitted by the respondent under section 151, C.P.C. For 29-2-1996. On 29-2-1996 the reply was not submitted to the application filed by the respondent and the case was adjourned for 13-3-1996 for submission of reply as well as arguments and framing of issues. On the said date the reply teas not submitted and a request was made for adjournment by the appellant. The Court granted adjournment and gave last opportunity for filing the reply and the case was adjourned for 31-3-1996. Neither the appellant nor his counsel appeared on the said date. Last opportunity was given to the appellant for filing the written reply and for arguments, therefore, it was ordered that follow up notice be issued to the learned counsel for the appellant and appellant, too, for 4-4-1996. On 4-4-1996 nobody appeared on behalf of the appellant although notice was served upon the appellant through his counsel and the case was adjourned with the direction to be presented at about 12-00 noon. On second call learned counsel for the parties appeared and reply to the application was submitted. The case was adjourned for arguments on the said application for 11-4-1996. On the said date the arguments were heard on the application filed by the respondent regarding insufficient surety bond and the case was adjourned for orders to 21-4-1996. On 21-4-1996 learned District Judge disposed of the application of the respondent under section 151, C.P.C. Mainly on the ground that the surety bond submitted by the defendant/appellant was not strictly in compliance with the order dated 18-12-1995 as property owned by the three persons is in three different villages in the District Chakwal and the sureties are not in exclusive possession of the land falling in their shares. The sureties are less than the amount of Rs.80,00,000 (Rupees Eighty Lacs) which is the subject-matter of the suit. Consequently the surety bonds submitted by the three persons from District Chakwal were rejected. However, in the interest of justice the appellant was ordered to furnish fresh surety bond owning immovable property Urban/Rural in District Rawalpindi on or before 9-5-1996. As an alternative, remedy if the appellant could not arrange the local surety, he can submit bank guarantee of the said amount.
On failing to comply with the order, further proceedings shall be initiated in accordance with law under Order 37, C.P.C: The case was adjourned for submission of surety bond on 9-5-1996.
4-A. Civil Revision No.220/96 was preferred against the order dated 21-4-1996 passed by the learned District Judge in this Court, wherein a consent order was passed by the learned Judge of this Court on 21-5-1996. The operative part of the said order is as under: "During the course of arguments, learned counsel for the parties agree on the point that the revision petition be disposed of subject to the condition that the petitioner/defendant should furnish a fresh surety bond of a citizen of the country, owning property in any District of the Punjab Province, worth Rs.80 Lacs to the satisfaction of the trial Court and the impugned order to be amended accordingly and the case be remanded to the trial Court for deciding the same.
Further in the concluding para., the defendant/petitioner was directed to furnish the requisite surety bond in the trial Court within a period of one months from today i.e. 21-5-1996."
5. The appellant also filed a review petition for extension of time given by the High Court but the same was dismissed and no extension was granted. Thereafter the appellant submitted surety bond of one Haq Nawaz son of Baz Khan resident of Village Gah, Tehsil and District Chakwal against the suit money. But the copy of register of tights annexed with the surety bond was worth Rs.18,25,000. The same amount of surety bond was found inadequate being below of Rs.80,00,000.
The appellant filed an application with the prayer to, extend the time for providing further proof of immovable property of remaining surety amount as the appellant could not collect the same uptill then, before the trial Court Learned District Judge dismissed the application of the appellant on 20- 6-1996 on the ground that he is not satisfied with the surety bond as it does not cover the suit money i.e. Rs.80 Lacs. It was also observed in the said order that time of one month is over today, therefore, he refused to extend the time further. No appeal or revision was filed against that order.
6. On 20-6-1996, the case was adjourned for further proceedings for 25-6-1996. On the said date a detailed English order was written by the learned District Judge and the case was adjourned to 30- 6-1996. On that date learned District Judge was busy in Election Duty of Azad Jammu and Kashmir Election, therefore, they case was adjourned to 7-7-1996. On 7-7-1996 learned District Judge decreed the suit of the respondent against the appellant, which is impugned before us.
7. The appeal was admitted by this Court on 15-7-1996. On the same date while disposing of C.M.
No.1122/C-96 the execution of the decree was stayed. No condition regarding the surety was imposed while staying the execution of the money decree. The respondent filed a petition for leave to appeal bearing No.395/96 in the Supreme Court of Pakistan. An interim order-was passed on 30-7-1996 by the learned Judge in Chamber of the Supreme Court, wherein the following order was passed:--- "Mr. Muhammad Nawaz Abbasi, Advocate Supreme Court with Mr. M.A. Zaidi, Advocate-on-Record.
Learned counsel submits that in the peculiar facts and circumstances of this case, High Court had no power to suspend the operation of money decree without attaching conditions. This being so, the interim impugned order dated 105th of July, 1996 having been passed by a Division Bench of the Lahore High Court is modified stating that the operation of the impugned money decree is hereby suspended provided the respondent/judgment-debtor furnishes the security regarding the payment of decretal amount to the satisfaction of Trial Court. This petition for leave to appeal alongwith application for interim relief shall be fixed for hearing in Court in the month of October, 1996".
8. Ultimately, the abovesaid petition was fixed before the Full Bench of the Supreme Court of Pakistan. The Hon'ble Supreme Court of Pakistan directed this Court to take up the appeal during the week commencing 13-10-1996. It is also observed in the last two concluding lines that "Meanwhile the interim order passed by this Court shall remain in field. "
9. In compliance with the direction issued by the Hon'ble Supreme Court of Pakistan, this appeal was partly heard on 14-10-1996 and the hearing has been concluded today.
10. Learned counsel for the appellant has admitted that order of the Supreme Court of Pakistan has not been complied with regarding furnishing the security equal to the decretal amount. Learned counsel for the appellant contends that order dated 21-5-1996 passed by the High Court could not be complied with by the appellant up to 23-6-1996. According to him, 21-6-1996 was last date, which was Friday and 22-6-1996 being Saturday, the Court was closed, therefore, the appellant could produce surety bond on 23-6-1996 as well and the finding of the learned District Judge that time for giving surety was uptill 20-6-1996 is not in accordance with law, therefore, the decree passed against him is illegal. He further submits that under section 105(1), C.P.C., he is still entitled to attack the irregularity committed during the trial and the order passed during the proceedings of the suit cannot be set aside even at this stage, while hearing of the appeal. Learned counsel submits that it was a case in which evidence was required and without any condition leave to defend should have been granted. He also submits that the petition under section 151, C.P.C. Filed by the respondent was not competent.
10. On the other hand, learned counsel for the respondent has contended that conduct of the appellant is unclean, as he has not complied with the order of he learned District Judge, High Court and the Hon'ble Supreme Court of Pakistan regarding furnishing of surety equivalent to the decretal amount. He further submits that the appellant has been delaying the proceedings under one pretext or the other in order to prolong the litigation. He contends that the order dated 21-5- 1996 directing the appellant to produce surety within one month from today meant till 19-6-1996 and relied upon PLD 1992 SC 417.
11. We have heard the learned counsel for the parties at length and perused the evidence placed on record. It is conceded by the learned counsel for the appellant that the order of the trial Court dated 21-4-1996 requiring him to furnish surety bond equivalent to Rs.80 lacs i.e. The 'suit amount has not been complied with. Similarly, consent order dated 21-5-1996, interim order passed by the Supreme Court imposing the condition of furnishing security on 30-7-1996 and last order of the Supreme Court dated 8-10-1996 also remained uncomplied with till today. The conduct of the appellant throughout the proceedings indicates that he has made all possible efforts to prolong the litigation on one pretext or the other. Firstly, he has challenged the order regarding imposing the condition of furnishing surety bond by filing Revision Petition No.220 of 1996 which was disposed of with the consent of the parties against which a review petition was also filed but the same was dismissed by the Division Bench of this Court. During this round of litigation, the appellant took all possible objections to the order of the trial Court dated 21-4-1996, he was required to furnish surety bond by preliminary order of trial Court dated 18-12-1995 till 21-1-1996, but in absence of respondent on 16-1-1996 inadequate security was furnished. On 21-1-1996, the respondent also appeared and on coming to know about the furnishing of surety by the appellant in his absence on 16-1-1996, he examined the file and an application under section 151, C.P.C. Was submitted to the learned Judge requesting him to safeguard his interest by asking him to furnish adequate security equivalent to the suit amount. Reply to that application was also delayed on few dates and ultimately the application under section 151,C.P.C. Filed by the respondent was accepted on 7th February, 1996.
The appellant was afforded further time to comply with the basic order, dated 18-12-1995 till 9-5- 1996. The appellant was also provided an alternate remedy of furnishing of bank-guarantee of the said amount in case sureties could not be arranged. He failed to comply the order and preferred revision petition in this Court which was disposed of on the basis of compromise between the parties and the appellant was given one month's time vide order dated 21-5-1995 for its compliance. This order was also not complied with and a review petition was submitted in the High Court for extension of time for production of the surety bond. That review petition as stated earlier was also dismissed. After the review petition was disposed of by the High Court, the appellant submitted surety bond of one Haq Nawaz son of Baz Khan of District Chakwal, but the value of the said property was also not equivalent to Rs.80 lacs. This property was only worth Rs.18,25,000, therefore, the amount of surety bond was found inadequate. The application of the petitioner for the grant of more time to produce any other surety was dismissed by the learned District Judge on 20-6-1996. It was also held by the learned trial Judge that 20th of June, 1996, was the last day and the appellant having failed to comply with the consent order of the High Court was not entitled to further extension in time. Order dated 20th of June, 1996, was not further challenged and ultimately there was nothing in rebuttal to the plaintiff of the respondent. Therefore, the learned trial Judge decreed the suit vide judgment and decree dated 7-7-1996.
12. The contention of the learned counsel for the appellant that he was entitled to produce surety bond on 23rd of June, 1996, cannot be accepted. Consent order dated 21-5-1996, clearly indicates that the time will run against the appellant from the same date as word 'today' has been used by the learned Judge while disposing of the revision petition. Counting thirty days of one month from 21-5-1996, the last day for submission of surety bond comes to 20th of June, 1996, and not 23rd of June, 1996, as contended by the learned counsel for the appellant. In calculation, reference may be made to Rehmat Elahi. v. Messrs Hayo Kabushiki Kaisha (PLD 1992 SC 417). Learned trial Court passed an order rejecting his surety bond on 20-6-1996, which was the last day, on the ground that adequate security was not furnished.
13. Trial Court was competent to pass an order on the application under section 151, C.P.C. To secure ends of justice while exercising its inherent powers in the present case. The contention of the appellant is that such a petition was not competent has no force and the same is repelled accordingly.
13-A,The appellant has not complied with the orders dated 18-12-1995, 21-4-1996 of the trial Court, order dated 21-5-1995 passed by the High Court, interim order of the Supreme Court dated 30-7- 1996 and the final judgment whereby the interim order of the Supreme Court was kept intact uptill now. Non-compliance of the said order by the appellant lead us to believe that he has not made any sincere and faithful effort to furnish surety bond in compliance of the orders of the Court. The conduct of the appellant disentitles him for leave to defend the suit. The learned trial Judge was justified in passing the decree in view of the non-compliance of the orders of the Courts by the appellant. Learned District Judge was left with no option but to decree the suit filed by the respondent, as the appellant was not granted permission to defend the suit by non-compliance of the condition imposed by the learned trial Court which was upheld by the High Court. The impugned judgment and decree passed by the Court below are perfectly in accordance with law.
The contention of the learned counsel for the appellant that any illegality during the proceedings of the suit could not be challenged in appeal in view of section 105(1), C.P.C. Is not strictly disputed by the respondent. No illegality of such a nature has been pointed out calling for setting aside the order of the learned trial Court. Therefore, provisions of section 105(1), C.P.C. Cannot be pressed into service in the present case.
14. The contention of the learned counsel for the appellant that in this case, leave to defend the suit should have been granted without imposing the condition is also without any substance. There was an agreement between the parties by virtue of which loan was obtained by the appellant from the respondent and for the return of the said loan, two post-dated cheques, one of Rs.50 lacs and the other for Rs.30 lacs, were given to the respondents for encashment. The said cheques were dishonoured and since the suit was based on valuable instrument triable under Order 37, C.P.C., learned trial Court was justified in imposing the condition while accepting the application of the appellant for leave to defend the suit since the appellant had intentionally chosen not to comply with the orders of the Court, therefore, leave to defend the suit automatically stood rejected as the condition imposed by the Court was not complied with. However, the order of the Supreme Court was slightly on different footing which is only related to the stay of execution. The order of the learned trial Court having been upheld by the High Court, whereby consent order affording further opportunity to the appellant for furnishing surety bond was granted on 21-5-1996 but the same also having not availed of, learned trial Court was justified in decreeing the suit. Hence the judgment and decree passed by the learned trial Court call for no interference.