' MIAN HAMID FAROOQ, J.---Muhammad Nazir, appellant/defendant, has instituted this first appeal to challenge the judgment and decree dated 16-6-2001, whereby the learned Additional District Judge, Mianwali, while rejecting the surety bond furnished by the appellant, proceeded to pass a decree for the recovery of Rs,3,00,000 against the appellant with costs.
2. Facts, in brief, leading to the filing of the present appeal are that in response to the summons issued by the learned Additional District Judge, in a suit for recovery of Rs,3,00,000 plus interest at the rate of 14%, preferred by the respondent, under the summary procedure provided under Order XXXVII, C.P.C., on the basis of a pronote dated 27-5-2001, the appellant submitted an application seeking leave to appear and defend the suit, which was accepted by the learned Judge, vide order dated 31-5-2001, subject to furnishing of surety of Rs,3,00,000. In order to meet the said condition, the appellant submitted surety bond on 16-6-2001, executed by two persons, who in support of the surety bonds, furnished separate documents of their respective properties showing their evaluations before the learned Court, who declined to accept the same and directed the appellant to produce only one surety of the requisite amount and on the failure of the appellant to submit one surety, on the same day, the learned Court decreed the suit for recovery of Rs,3,00,000 with costs, against the appellant vide judgment and decree dated 16-6-2001, hence, the instant appeal.
3. Learned counsel for the appellant contends that the approach of the learned Court, while declining to accept the surety bond executed by two persons and his insistence on the production of one surety, is contrary to the established principle of law. He submits that although the appellant duly complied with the terms of the order dated 31-5-2001, yet the learned Judge proceeded to pass the decree in complete oblivion of the facts of the case and the law on the subject. He further submits that the appellant is still prepared to furnish the surety bond of the requisite amount. On the other hand, the learned counsel for the respondent has supported the impugned judgment and decree and submits that even the surety bond furnished by the two persons was not in accordance with law and the learned Court thereafter directed the appellant to submit a fresh surety bond on the same day, but the appellant failed to even comply with that order despite the fact that the appellant, his learned counsel and the Court itself waited for the appellant till 3,O'Clock.
4. We have perused the order dated 31-5-2001, through which ,the appellant was directed to furnish the surety bond in the sum of Rs,3,00,000 of a person of means. We have also examined the impugned judgment, whereby the learned Additional District Judge decreed the suit on the plea that the appellant failed to comply with the terms of the order dated 31-5-2001, through which he was granted conditional leave to defend the suit. It appears from the judgment that although the appellant submitted surety bond amounting to Rs,3,00,000 on 16-6-2001, but the same was rejected on the ground that the surety bond was executed by two persons jointly but the properties of none of them valued at Rs,3,00,000 and even the joint value of the property hardly comes to Rs,3,00,000. The appellant was non-suited on this ground.
5. Undoubtedly, the appellant submitted the surety bond, before the learned Court, of the requisite amount within the stipulated period alongwith the certified copies of Jamabandi, which are on record, which was a sufficient compliance with the terms of order dated 31-5-2001. Copies of Revenue record shows that the joint value of the properties of the surety comes to Rs,3,57,334.95, which obviously exceeds from Rs,3,00,000. There is no prohibition in law that two persons cannot stand surety jointly neither such an embargo was placed by the learned Additional District Judge, while allowing the appellant to defend the suit vide order dated 31-5-2001. The two grounds, seem to have prevailed with the learned Court, for rejecting the surety bond were that the surety bond was executed by two persons and that joint value of two sureties hardly comes to Rs,3,00,000. We are of the considered view that the impugned judgment is not only spineless and comprehensively lacks the support of law, but it is also harsh and amounts to knocking slut the appellant on hyper- technical ground. Approach of the learned Judge, while dealing with the matter involving valuable rights of the parties, to say the least, is perfunctory, hyper-technical and cannot be countenanced.
We find ourselves unable to agree with the said findings and cannot subscribe to such a judgment.
6. We are aware of the judgments, wherein superior Courts of this country had time and again held that the parties should not be non-suited on mere technicalities and the lis, so far as possible, has to be decided on merits. If judgments are needed Evacuee Trust Property Board through Assistant Director, Evacuee Trust Properties, Gujrat v. Muhammad Siddique alias Bandoo and others 1995 SCM R 1748, Mir Mazar v. Azim PLD 1993 SC 332 and Master Musa Khan and 3 others v. Abdul Haque and another 1993 SCM R 1304 may be referred.
7. In view of the above findings and conclusions, we accept the appeal, set aside the impugned judgment and decree dated 16-6-2001 and allow the appellant to furnish fresh surety bond of the said amount. Resultantly, the suit, out of which the present appeal arose, would be deemed to be pending before the learned Additional District Judge, Mianwali wherein the appellant shall submit the fresh surety bond of the requisite amount duly executed by the sureties, for the amount of Rs,3.00,000 before 9-9-2001 in terms of order dated 31-5-2001 and thereafter the case will, of course, be decided in accordance with law. However, if the appellant fails to do the needful hereinbefore mentioned, needless to mention, in that case, law will take its own course. There is no order as to costs.