' On 5-9-1995, respondent filed a suit for the recovery of a sum of Rs,1,12,538 claiming that such amount is due to him from \ the appellant on account of the promissory note, dated 28-4-1993, which appellant has failed to pay. An application for leave to appear and defend was moved by the appellant on 26-9-1995, and specific plea taken was that the said promissory note is result of fraud, forgery and is a fabricated document. The Court while considering the matter, was pleased to grant leave to appear and defend vide order, dated 7-12-1995, however, subject to the condition that the appellant should file a surety bond by 20-12-1995 .
2. From the record, it transpires that the Court was on leave on 20-12-1995, case was adjourned by the Duty Judge, for 16-1-1996. It may be pertinent to state here that on 20-12-1995, the appellant moved an application under section 151, C.P.C., seeking comparison of the signatures on this document through Hand Writing Expert, reiterating his position that such are forged.
3. Anyhow, on 16-1-1996, the appellant produced the requisite surety bond, which was accepted by the Court, thereafter, an application under section 151, C.P.C. Was moved by the present respondent seeking sticking off the appellant's defence on the ground that he was required to fulfil the condition by 20-12-1995, which has not been complied with, therefore, in terms of provisions of Order 37 Rule 2, C.P.C., it would be deemed that. He was refused the leave and thus by deeming the averments made in the plaint as correct, respondent is entitled to a decree. Learned Additional District Judge, vide impugned order, dated 6-3-1996, has come to the conclusion that the appellant has failed to comply with the order granting leave and to submit the surety bond by 20- 12-1995, thus would be deemed that leave has been refused to him and consequently, averments made in the plaint being correct, a decree was granted to the respondent, Hence this appeal.
4. Learned counsel for the appellant has contended that the stamp paper on which surety bond is drafted, was purchased on 19-12-1995 and it was written on the same day, however, it could not be placed on record because of absence of the learned Presiding Officer. Besides that the Presiding Officer subsequently on 16-1-1996, had accepted this surety bond, therefore, any lapse in filing it earlier, has been condoned, rather time in this behalf would be deemed to have been extended.
Furthermore, by relying 'upon PLD 1999 SC 362, at page 377, paragraph No,10, it is contended that because the allegations of fraud and forgery qua the promissory notes were specifically made by the appellant, thus before passing the decree, the Court should have adverted to this aspect of the matter, to itself satisfy whether the promissory note is a valid document or otherwise. In the fact and circumstances of the case, respondent should have been required to prove the documents through witnesses enabling the appellant to cross-examine them.
5. Learned counsel for the respondent, has defended the order impugned by stating that as conditional order was not fulfilled, thus the leave would be deemed to have been refused and as per provisions of Order 37, Rule 1, C.P.C., the averments of the plaint, were to be taken as correct and suit accordingly decreed. Reliance in this behalf, has been placed on 1985 CLC 2467 and PLD 1984 Karachi 127.
6. I have heard the learned counsel for the parties. Leave was granted to the appellant after finding that there is plausible defence to offer, particularly where the execution of the documents were denied by him and claimed those to be result of fraud and forgery. Admittedly, on 20-12-1995, the Court was on leave and from the stamp paper of surety bond; the date of execution, it is clear that such document was executed prior to that date. It cannot be ruled out that the appellant was prevented to produce the said document, because the Reader did not place it on the record for the reason that learned Presiding Officer was on leave and the surety bond could not be brought on record, if admitted/accepted by the Judge. Anyhow, subsequently, the appellant when produced the surety bond on 16-1-1996, the same has been accepted by the learned Presiding Officer, meaning thereby that time fixed for the surety bond, was enlarged by the Court under the provisions of section 148 of C.P.C. In any case, after the leave having been granted to the appellant, the filing of surety bond though a condition, only for the reason that it was not filed on the date given by the Court, when the Court was on leave, is only a technical matter. When subsequently, the Court had admitted and accepted this document. The view taken by the learned Court that because the appellant could not file the surety bond on 20-12-1995, is very harsh order, which has in fact totally knocked out the appellant, despite the fact that in the earlier order granting leave, he was able to substantiate a plausible defence, which had been accepted as such, by the learned Court. It is not a case where the appellant did not, at all, fulfil the condition so as to attract the law quoted in the impugned order as also cited by the learned counsel for the respondent, rather from the facts, as mentioned above, it is established that the surety bond though after the period provided by the Court, was accepted before the application for stricking off the defence was moved by the respondent, such surety bond was on the record.
' In the light of above, this appeal is allowed, the judgment of the Court below is set aside, the case is sent back to the trial Court for decision in accordance with law.