2004 PLP 414 (MLD)

Col. (Retd.) Ayub Ali Rana v. Dr. Carlite Pune and another PLD 2002 SC 630; Zahoor Ahmad v. Mehra through Legal Heirs and others 1999 SCMR 105; Haji Rais Ahmed v. Aslam 1991 CLC 602 and Haji Muhammad Siddique v. Rana Muhammad Sarwar 2003 CLD 1003 ref. Abdul Wahid Ch. for Petitioner Mian Muhammad Javed Munawar for Respondent. Date of hearing: 3rd December, 2003. By order dated 6‑11‑2003 the trial Court proceeded to close the defence of the petitioner for non‑compliance of order and non‑filing of written statement. The same has been assailed through this revision petition.

2. It is contended by the learned counsel that since there was no specific direction on the preceding date i.e. 4‑11‑2003 for filing of the written statement, no such penal order could be passed. It is further contended that the law favours adjudication on merits, the order impugned should be set aside being illegal and unlawful. Reference in this context has been made to Col. (Retd.) Ayub Ali Rana v. Dr. Carlite Pune and another (PLD 2002 SC 630), Zahoor Ahmad v. Mehra through legal heirs and others (1999 SCMR 105) and Haji Rais Ahmed v. Aslam (1991 CLC 602). The learned counsel for the respondent/plaintiff has with reference to the proceedings in the suit, contended that although leave to appear and defend the suit was granted by the Court subject to furnishing surety bond to the satisfaction of the Court, yet the said order remained un complied with despite adjournments granted to the petitioner and that even the costs subject to which the ex parte order was recalled, had not been paid by the petitioner. It is further contended that the petitioner does not deserve any further indulgence in the matter. He has placed reliance upon Haji Muhammad Siddique v. Rana Muhammad Sarwar (2003 CLD 1003).

3. It was suit under Order XXXVII C.P.C. for the recovery of a stated amount on the basis of promissory note in which the petitioner sought leave to appear and defend, which was granted on 7‑6‑2003 subject to furnishing surety bond to the satisfaction of the Court, for which purpose the suit was adjourned to 30‑6‑2003 and the filing of written statement. The perusal of the order‑sheet, copy whereof has been placed on the record, shows that thereafter the suit was adjourned either on the ground that there was some compromise being negotiated between the parties or some other reasons. On 4‑9-2003 the petitioner was proceeded against ex parte and the suit was adjourned for ex parte evidence. On 20‑9‑2003 an application was filed by the petitioner for setting aside of the ex parte proceed inks, which application was allowed by the learned Additional District Judge, Faislabad on 21‑10‑2003 subject to payment of costs of Rs.100. On that date the petitioner was "directed to submit written statement and surety bonds on 4‑11‑2003." On the adjourned date i.e. 4‑11‑2003 written statement was not filed and the suit was adjourned to 6‑11‑2003 for making up deficiency in the surety. On 6‑11‑2003, it appears that on the first call counsel for the parties appeared when it was stated before the Court that the written statement was not ready and time was sought. The case was thus kept in waiting which was taken up at about 1:30 p.m. when the petitioner/defendant himself appeared and stated that the written statement was not ready and asked for adjournment. The Court then appears to have taken account of the previous proceedings in the suit and noting the defaults on the part of the petitioner/defendant proceeded to close his defence. The perusal of the order‑sheet is indicative of the fact that neither the conditional order dated 7‑6‑2001 granting leave to appear and defend had been complied with, despite indulgence shown by the Court nor the order for payment of costs subject to which ex parte proceedings were recalled by the Court on 21‑10‑2003, was complied with. Even the written statement was not filed despite direction contained in order dated 21‑10‑2003. Such indolence and laxity on the part of the petitioner hardly entitled him to any further indulgence in the matter. Suffice it to state that this was a summary suit under Order XXXVII C.P.C. envisaging special procedure for expeditious disposal of the matter. The assertion made by the learned counsel for the petitioner that the son of counsel for the petitioner since had met with an accident, the written statement, therefore, could not be prepared, has been vehemently controverted by the learned counsel for the respondent who practises at Faisalabad and states that no such incident had taken place and an incorrect/false stance is being taken to mislead the Court. Be that as it may, on consideration of the proceedings that have taken place since after the grant of leave to appear and defend to the petitioner a clear impression is discernible that dilatory tactics were being adopted by the petitioner to somehow prolong the proceedings and failed not only to comply with the Court's order but also availing the indulgence shown to him. Reliance upon the precedents cited by the learned counsel for the petitioner is inapt and misplaced in view of the peculiar facts and circumstances of the case, as noted above. It may be observed that the judgment in Col. (Retd.) Ayub Ali Rana case (supra), in which previous precedents have been noted and considered, arose of a suit for recovery of damages whereas in the instant case it was a suit under order XXXVII C.P.C., the distinguishing features are thus quite obvious. In view of the above, I find that no such illegality or material irregularity has been committed by the trial Court which could warrant interference by this Court under section 115 C.P.C. The revision petition, therefore, is dismissed. No order as to costs. H.B.T./S‑806/L Revision dismissed.