2010 PLP 689 (CLC)

ARSHAD MAHMOOD, J.

This civil revision assails the order dated 14-2-2009 whereby application of the respondent seeking extension in time for filing of surety bond was allowed.

2. Tersely facts of the case are that the petitioner filed a suit for recovery Order XXXVII, C.P.C. for recovery of Rs.3,28,000 (Rupees three lac twenty eight thousand only) on the basis of a cheques issued by the respondent, which was decreed ex parte vide judgment and decreed dated 27-7-2006. The respondent, however, appeared and filed an application on 24-1-2007 seeking setting aside of ex parte decree, which after fulfilling codal formalities was set aside vide order dated 25-11-2008. The respondent applied for leave to appear and defend the suit which was granted on 9-1-2009 subject to the condition that he would submit surety of equal amount within two weeks. Respondent sought extension in time for furnishing surety bond which was allowed vide impugned order dated 14-2-2009. Hence this petition.

3. Learned counsel for the petitioner submits that grounds seeking extension in time for furnishing of surety were not sufficient; that conduct of the petitioner was contumacious, therefore, he was not entitled to the discretionary relief and; that the learned trial Court committed a gross irregularity by not decreeing the suit on non-compliance of the order by the respondent. In support of his arguments he referred to Muhammad Ismail v. Syed Intizar Abbas Zaidi 2004 CLC 389, Aftab Iqbal Khan Khichi and another v. Messrs United Distributors Pakistan Ltd., Karachi 1999 SCMR 1326.

4. On the other hand, learned counsel for the respondent, stood behind the impugned order and argued vehemently that discretion once exercised in favour of respondent cannot be taken away as it would amount to deprive him of his right of defence and valuable rights of the respondent are involved in this lis. He further submitted that it is well-established principle of administration of justice that cases should be decided on merits and parties should not be knocked out on technicalities.

5. Heard learned counsel for the parties and record perused.

6. The learned trial taking into consideration old age of the respondent, distance of his residence from the Court premises and lack of intimacy at Rajanpur extended time for submission of surety bond. Discretion was thus exercised after weighing the balancing respective pleas of parties and by judicial application of mind which by no stretch of imagination can be termed as arbitrary or fanciful. After the impugned extension in time respondent furnished surety bond and filed written statement to the plaint. Out of divergent pleadings issues have been framed including the issue of jurisdiction and parties have been asked to produce relevant evidence on the question of jurisdiction, therefore, much water has flown under the bridge.

7. There is another aspect of the case. Even after the dismissal of application for leave to defend learned trial Court was not obliged to decree the suit straightway and could ask the plaintiff/petitioner to produce evidence in support of his claim and in that eventuality defendant could have participated in the proceedings, therefore, no prejudice has been caused to the petitioner by the impugned order.

8. Law favours adjudication of lis on merits. Discretion exercised by the learned trial Court for advancement of the above principle of law" cannot be interfered in revisional jurisdiction. Therefore, there is no force in this petition which is dismissed accordingly. M.U.Y./M-778/L Petition dismissed.