AJMAL MIAN, J.--This is a petition for leave to appeal against the judgment dated 15-10-1996 of a learned Division Bench of the Lahore High Court passed in R.F.A. No.86 of 1996, filed by the petitioner against the judgment/decree dated 7-7-1996 of the learned District Judge, Rawalpindi, decreeing the respondent's suit under Order 37, C.P.C. For recovery of Rs.80,00,000 with costs and profit at the rate of PLS Account of any scheduled Bank till realisation of the decretal amount, dismissing the same.
2. The brief facts are that the respondent filed a suit for the recovery of Rs.80,00,000 under Order 37, C.P.C. On the basis of averment that he had advanced a loan to the petitioner under agreement dated 6-2-1995 and for the payment of above loan, the petitioner issued to cheques, both dated 9- 4-1995, amounting to Rs.50,00,000 and Rs.30,00,000. The petitioner, upon receipt of the summons under Order 37, C.P.C., applied for leave to defend, which was granted by the learned District Judge, Rawalpindi, on 18-12-1995 subject to furnishing surety bond before the Court in the sum of Rs.80,00,000. The matter was also fixed for filing written-statement by the petitioner on 21-1-1996. It appears that the matter had come up before the learned District Judge, inter alia, on 21-4-1996 in connection with the respondent's application under section 151, C.P.C., in which it was averred that the petitioner failed to furnish surety of the above sum in terms of the order of the Court inasumch as he offered agricultural land situated- in three different villages, the value of which was less than Rs.80,00,000. It appears that the learned District Judge on 9-5-1996 ordered the petitioner to furnish fresh surety bonds owning immovable property, urban/rural in District Rawalpindi, on or before 9-6-1996. Against the said order, the petitioner filed Civil Revision No.220 of 1996, which was disposed of by consent as under:-- "3. 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.80,00,000 to the satisfaction of the trial Court and the impugned order be amended accordingly and the case be remanded to the trial Court for deciding the same expeditiously.
4. In this view of the matter, the impugned order is amended in terms of the agreement between the parties as explained above. The petitioner/defendant is directed to furnish the requisite surety bond in the trial Court within a period of one month from today.
This revision petition stands disposed of accordingly."
3. It seems that the petitioner filed a review petition for extension of the period mentioned in the above-quoted order, which was declined by the learned Judge in chambers. After that the petitioner submitted a surety bond on 20-6-1996, which was not accepted on the ground that the same was submitted one day after the expiry of the period. Thereafter on 7-7-1996, .The learned District Judge decreed the suit.
4. Against the above order, the petitioner filed R.F.A. No.86 of 1996 in the Lahore High Court.
Alongwith that, he also filed C.M.A. No.1122/C of 1996 for the stay of execution of the decree, on which the learned Judge in Chambers granted stay on 15-7-1996 without any condition. Against the above stay order, the respondent filed Civil Petition for Leave to Appeal No.395 of 1996 in this Court, in which the aforesaid interim order of the High Court was suspended subject to furnishing of security by the petitioner to the satisfaction of the trial Court. After that, the aforementioned R.F.A.
Was heard and dismissed through the impugned judgment. The petitioner has, therefore, filed the present petition for leave to appeal.
5. In support of the above petition Mr. Gul Zarin Kiani, learned ASC appearing for the petitioner, has urged as under:--
(i) That the learned District Judge was not justified to grant conditional leave on furnishing of surety of the suit amount in view of the defence raised by the petitioner in the application for leave;
(ii) That, in any case, the learned District Judge shut out the petitioner from furnishing surety on 20- 6-1996 though one month's period was to expire on 21-6-1996 and that since 22-6-1996 was Saturday (a closed holiday of the Court), the petitioner was entitled to furnish surety by 23-6-1996.
On the other hand Kh. Muhammad Farooq, learned ASC for the respondent/Caveator, has contended as follows:--
(i) That the plea raised by the petitioner in his application for leave to defend the suit was not such which warranted grant of unconditional leave;
(ii) That since one month was to be computed from the date of the order i.e. 21-5-1996, the learned District Judge was entitled not to accept any surety after 20-6-1996, which was Thursday.
6. Mr. Gul Zarin Kiani, in support of his first submission, has referred to para 20 of the judgment of this Court in the case of Mian Rafique Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. And another (PLD 1996 SC 749) in which after referring to the case- law, Saiduzzaman Siddiqui, J. Has enunciated the rules as to the grant of leave in a suit under Order 37, C.P.C. According to Mr. Kiani, since the petitioner in his leave application had pleaded that the loan agreement and the to cheques were forged, he was entitled to an unconditional leave. There cannot be any cavil with the propositions propounded in above para. 20 of the aforesaid judgment, but the above rules are to be viewed with reference to the facts of each case. In the above report, the conditional order for the grant of leave was maintained. In our view, simpliciter denial of the execution of the document or making allegation of forgery without any further material indicating that such plea is a bona fide plea, will not be sufficient. In the present case, the petitioner had admitted that the to cheques, which were the subject-matter of the suit, were in fact from his cheque book. The above loan agreement was also on his letter head. The plea taken was that the cheque book and the letter heads were kept in the office of the respondent on account of good relationship and for the reason that the petitioner did not have his own office at Rawalpindi.
According to the petitioner, he lodged the F.I.R. After discovery of the above to cheques. In this connection, it may be pertinent to observe that the respondent filed suit on 12-4-1995, whereas the petitioner lodged F.I.R. On 18-4-1995, a copy of which has not been filed in this Court. Be that as it may, we would not like to make any observation as to the merits of the above plea as it may prejudice the petitioner before the trial Court. However, it will suffice to observe that the nature of the plea raised by the petitioner in his application for leave to defend the suit was such that the learned District Judge was justified in granting conditional leave. In this regard, celebrated judgment of this Court rendered by Hamoodur Rahman J. (as his lordship then was) in the case of Fine Textile Mills Ltd., Karachi v. Haji Umar (PLD 1963 SC 163) may be referred, particularly the following observations:-- "These facts, if proved to be true upon the taking of evidence, would clearly have rebutted the presumption of the passing of consideration and shifted the onus upon the plaintiff in the suit to prove consideration and, therefore, clearly entitled the appellant to leave to appear and defend the suit.
In this view of the matter we would allow this appeal, set aside the judgment and decree passed by the High Court and give leave to defend in the suit but since the conduct of the appellant is not entirely free from suspicion this will be subject to the condition that the entire amount of Rs.90,000 is deposited in Court within to months of the announcement hereof. "
We are, therefore, of the view that no exception can be taken to the grant of conditional order by the learned District Judge.
7. Adverting to the second submission of Mr. Gul Zarin Kiani, it may be observed that both the parties have relied upon the judgment of this Court in, the case of Rehmat Elahi v. Messrs Hoyo Bakushiki Kaisha (PLD 1992 SC 417), wherein the following conclusion was recorded:-- "3. From the afore-stated references it seems well settled that when word ' month' is used in any Statute or Rules - it is to be taken as calendar month. The period of one month running from an arbitrary date would expire with the day in the succeeding month immediately preceding the day corresponding the date upon which the period starts. However, where section 9 of the General Clauses Act is pressed in service in computing the period of one month the date on which order was passed will be excluded and it will be reckoned from the date succeeding the date of order. In cases where the succeeding month does not contain same number of days as in the preceding month then the period of one month expires on the last day of the succeeding month. Any month commencing from 30th or 31st of January will end with last day of February whether 30 days have been completed or not. Mr. Qizilbash has referred to Dave Desikar v. Murvigesa Mudali, ILR 29 Madras 75, but it is not relevant because it was on the interpretation of sections 40 and 51 of the Madras Rent Recovery Act that the word 'month' was held to be equivalent to 30 days as provided by section 51. The learned counsel has also referred to Govindprasad and another v. Pawankumar, AIR 1952 Orissa 278, but it is also not relevant as in computing a period of one month section 9 of the General Clauses Act was applied and the day on which order was passed was excluded. This case also does not assist the appellants."
8. A perusal of the above-quoted para. Indicates that in case of any Statute or Rules, a calendar month is taken as the period on one month running from an arbitrary date, which would expire with the day in the succeeding month immediately preceding the day corresponding the date upon which the period starts. However, by virtue of Section 9 of the General Clauses Act, period of one month for the purpose of an order is computed by excluding the date on which order is passed.
9. In the case in hand, if we were to apply the above ratio, one month period in the present case was to expire on 21-6-1996, which was Friday; whereas 22-6-1996 was Saturday (a closed holiday) and thus 23-6-1996 was the last day for the purpose of expiry of the above period of one month.
There is no doubt that in the order dated 21-5-1996, it was stated that "one month from today" but one could, on the basis of the above judgment and many other judgments of the superior Courts on section 9 of the General Clauses Act, think that the aforesaid period would expire on 21-6-1996.
We are, therefore, inclined to grant further opportunity to the petitioner to furnish surety for the above suit amount on the condition stated herein below, though we are mindful of the fact that the petitioner had not acted diligently before the Courts below as is reflected in the narration of facts in the impugned judgment.
10. The petition is converted into an appeal, impugned judgment and the order of the Court below are set aside and the case is remanded to the learned District Judge, Rawalpindi, do the condition that the petitioner shall' furnish surety of the above sum of Rs.80,00,000 in the form of urban property situated in a city of Punjab on or before 10-12-1996 to the satisfaction of the learned District Judge. In case the surety which may be tendered by the petitioner is not accepted by the learned District Judge for any reason on or before 10-12-1996, the judgment and decree of the trial Court shall stand restored without any further order from this Court. The above, appeal stands disposed of in the l, terms with no order as to costs.