2015 PLP 1941 (YLR)

QALANDAR ALI KHAN, J.

Roman Ali Khan Tanoli, appellant, has assailed order dated 2-9-2013 of the learned Additional District Judge-IV, Mansehra, whereby his defence was struck off in suit of the respondent, and a decree for recovery of Rs.3140,000 was granted in favour of respondent/plaintiff Malik Khurram Shahzad.

2. The respondent/plaintiff had lodged suit against the appellant/defendant for recovery of Rs.3140,000 along with 10 % interest under Order XXXVII, C.P.C. The claimed amount was, allegedly, outstanding against the appellant/defendant and the latter had executed a pro note and undertaking on 10-8-2009 besides handing over cheques for discharging his liability up to 1-9-2009; but neither the amount was paid nor the cheques were honoured, hence the suit.

3. The appellant/defendant failed to appear in the Court in response to the summons issued by the Court and was, therefore, proceeded against ex-parte and ex-parte decree for recovery of the said amount was granted in favour of the respondent/plaintiff against the appellant/defendant vide order of the learned Additional District Judge-IV, Mansehra dated 16-10-2012. On application for leave to defend the case against him by the appellant/defendant, he was granted the requisite leave subject to furnishing bank Guarantee to the tune of amount in question within 15 days from the order dated 13-7-2013; but the appellant/defendant not only failed to comply with the said direction of the Court but also did not submit his written statement despite repeated opportunities granted to him by the Court for the purpose, leading to striking off his defence and decree for recovery of Rs.3140,000 vide order dated 2-9-2013.

4. Arguments of learned counsel for the parties heard, and record perused.

5. The appellant/defendant has impugned striking off his defence and decree for recovery of Rs.3140,000 against him by the Court vide the impugned order dated 2-9-2013, inter alia, on the grounds that the respondent/plaintiff had given his wrong address, resulting in ex parte decree against him, which was set aside on his application, but subject to furnishing bond in the sum of Rs.3140,

000. The appellant/ defendant claimed that as he was residing at Karachi, he could not arrange the security (Bank Guarantee) in time and the learned trial Court, therefore, passed the impugned judgment and decree against him on 2-9-2013. While admitting his failure to furnish the requisite bank guarantee and submit written statement within the granted time, the appellant/defendant claimed that the Court could grant him leave to defend unconditionally. The appellant/defendant also questioned the impugned judgment and decree on the ground that the same was not based on any evidence as the respondent/ plaintiff failed to prove ownership of the vehicle which was the bone of contention between the parties.

6. Needless to say that provision of Order XXXVII Rule 3(2), C.P.C. empowers the Court to grant leave to defend unconditionally or subject to such terms as to payment in Court, giving security and framing and recording issues or otherwise as the Court thinks fit. As such, while keeping in view the fact that earlier the appellant/defendant had failed to appear and an ex parte decree was granted in favour of respondent/plaintiff against him, the Court was justified to attach the condition of furnishing bank guarantee to the tune of Rs.3140,000 while granting leave to defend to the appellant/defendant, who never denied execution of pro note or handing over of dishonoured cheques for the amount in question to the respondent/ plaintiff, and also admitted his failure to furnish the requisite bank guarantee and submit written statement in accordance with the direction of the Court. In such a situation, his grievance against the impugned order relating to non recording of evidence with regard to the ownership of the vehicle and ex parte proceedings against him are bereft of merit and alien to the express provisions of law, providing for decree in favour of plaintiff/respondent in such like situation. (2004 SCMR 882).

7. Consequently, the appellant has not been able to make out a case for interference by this Court, and his appeal, being devoid of merits, is dismissed with costs, and the impugned judgment of the learned Additional District Judge-IV, Mansehra dated 2-9-2013, which is not open to exception, is upheld. AG/75/P Appeal dismissed.