This judgment will dispose of Civil Revision No.1246 of 1998 which calls in question order, dated 17-6- 1998, of the learned Additional District Judge, Lahore.
2. Facts necessary for the disposal of this revision petition are, that respondent filed a suit for recovery of Rs.10 Lacs against the petitioner. The suit was filed under Order XXXVII of C.P.C., which was decreed ex parte on 4-11-1996. Petitioner filed an application under Order XXXVII, Rule 4, for setting aside of decree, dated 4-11-1996. On 23-2-1998, the learned Additional District Judge set aside the decree subject to furnishing of bank guarantee in the sum of Rs.10 lacs.
3. Petitioners challenged the order in Civil Revision No.551 of 1998 which was decided by this Court on 17-4-1998. In terms of the order, passed in civil revision, the petitioner was allowed to furnish security, instead of bank guarantee, for appearance and defending the suit on merit. Parties were directed to appear before the Additional District Judge on 24-4-1998 while the petitioner was required to furnish security within ten days from the date fixed for appearance of parties before the learned Additional District Judge. He was also directed to file written statement within the same period i.e. Ten days. Petitioner did not furnish security within stipulated period and ultimately, the learned Additional District Judge passed order, dated 17-6-1998, to the effect that the petitioner having failed to furnish security, he could not be granted permission to defend the suit. It is this order, which is now under challenge in the present revision.
4. Learned counsel for the parties have been heard.
5. Case of the petitioner is that he was willing to furnish security but the learned Presiding Officer was on leave and that the impugned order was passed in his absence and also that there was no default on his part in compliance of the condition imposed for granting leave to appear and defend the suit.
6. From the record it is evident that the petitioner, in the first instance, failed to appear or move an application for leave to appear and defend the suit within ten days, with the result that the suit was decreed ex parte on 4-11-1996. Petitioner moved an application under Order XXXVII, Rule 4 of C.P.C.
For getting aside of ex parte decree, when the learned Additional District Judge allowed him to defend the suit, by setting aside ex parte decree, subject to the condition of furnishing of bank guarantee. This was vide order, dated 23-2-1998. Petitioner challenged the order in revision when the condition of bank guarantee was substituted with the simple security. The operative part of the order was to the following effect;- - "Accordingly, this revision is allowed, the impugned order, dated 23-2-1998 of the learned Additional District Judge to the extent of imposition of condition of furnishing bank guarantee is set aside and the same is modified to the effect that the application under Order 37, Rule 4 of C.P.C.
Would stand accepted, the ex parte decree would stand set aside and the petitioner is allowed to appear and defend the suit subject to furnishing of security of a third person, who is a man of means to the tune of Rs.1,00,000. The parties will appear before the learned Additional District Judge, Lahore on 24-4-1998. Petitioner will furnish security within 10 days, from the date fixed for appearance of the parties before the learned Additional District Judge. He will file written statement within the same period i.e. The 10 days.
Learned Additional District Judge will accelerate the hearing of suit and ensure final decision of the same within three months with intimation to the Registrar of this Court."
7. From the order passed in Civil Revision No.551 of 1998, it is discernible, that the parties were required to appear before the Additional District Judge on 24-4-1998 from this date, the petitioner was directed to furnish security within 10 days and also to file written statement within the same period. This would mean that the petitioner could furnish security and written statement, till 4-5- 1998. The petitioner failed to furnish security within 10 days and ultimately, the learned Additional District Judge, vide order, dated 17-6-1998, recalled the permission to defend the suit as the petitioner had failed to fulfill the condition of furnishing security. It is thus obvious, that till 17th of June, 1998, the petitioner had not complied with the order passed by this Court nor he ever moved an application to this Court for extension in time. Even if, the argument that on one date, the learned Presiding Officer was on leave, is kept in view still there is no justification for not furnishing of security till 17th of June, 1998. In the first instance, the security could be presented before the Duty Judge who was not denuded of its power to entertain and accept the same. It is not the case that the surety bond was ready or was produced before the Duty Judge and was not entertained. The bond could be submitted even on the next working day which course was never adopted. It is thus clear, that the petitioner did not have the intention to furnish the security and the only idea was to delay the proceedings one way or the other. By indulging in all these tactics the petitioner was successful in avoiding the matter for three years. The ex parte decree was passed on 4-11-1996, which was set aside at his instance on the conditions of guarantee which condition was relaxed by allowing furnishing of security and this too was not complied with. The petitioner was only interested in prolonging the litigation, by adopting ail possible dilatory tactics. In this view of the matter, no relief in discretionary jurisdiction can be extended to the petitioner.
8. Order passed by the learned Additional District Judge does not suffer from any error of law and calls for no interference.
9. Resultantly this revision being devoid of merit is dismissed with costs.
H.B.T./F-47/L