2007 PLP 197 (CLC)

MAULVI ANWARUL HAQ, J.

This case has rather a chequered history. On 15-9-2001 the respondent filed a suit for recovery of Rs.10,50,000 against the appellant under Order XXXVII, C.P.C. with reference to a pro note executed by the appellant promising to pay the said amount on demand. The appellant was served in the manner prescribed. He put in appearance and filed an application for leave to appear and to defend. The leave was granted with consent on 3-11-2001 subject to furnishing of security in the suit amount. The security was furnished and the fact was noted in order, dated 20-11-2001. On 28-11-2001 the surety appeared in Court and made a statement that he be allowed to withdraw. He was allowed to do so and the appellant was directed to furnish a fresh security. This was done on 21-12-2001. The written statement was filed. Issues were framed on 25-1-2002. Some evidence of the respondent was recorded on 19-2-2002. On 26-2-2002 Aman Ullah, surety, filed an application seeking permission to withdraw. His statement was recorded and he was allowed to withdraw. On the same date evidence of the respondent was concluded. The appellant was directed first to furnish the security on or before 13-3-2002. On this date an application for extension of time was filed which was allowed and the appellant was directed to furnish the security upto 26-3-2002. On this date, again, application for extension was filed which was dismissed, the leave was withdrawn and the suit was decreed. The appellant filed Regular First Appeal No.303 of 2002 in this Court which was allowed by consent vide judgment, dated 20-5-2002 and the appellant was directed to furnish the security within one month. The security was furnished. This time the respondent filed an application for rejection of the bond. The arguments were heard on 8-1-2003 and the case was adjourned to 10-1-2003 for orders. On this date, an application was filed by the appellant for furnishing of a fresh security. This application was ultimately allowed on 22-5-2003 subject to costs of Rs.3,

000. The surety bond was filed and accepted. Now on 6-12-2003 Atta Muhammad surety appeared and on his request was allowed to withdraw. The learned counsel for the appellant requested for an opportunity to file fresh bonds. He was directed to' do so at 3-00 p.m. on the same day. This could not be done and the suit has again been decreed on 6-12-2003.

2. Learned counsel for the appellant contends that it was not at all possible to arrange fresh security in a matter of hours and as such the impugned judgment and decree is illegal and without jurisdiction. According to him, reasonable opportunity ought to have been granted to his client to arrange fresh security. The learned counsel for the respondent, on the other hand, vehemently urges that the appellant is not entitled to any relief in view of his conduct apparent on the face of the record.

3. We have gone through the trial Court record, with the assistance of the learned counsel for the parties and we have narrated above the entire history of this case. We may observe in the very beginning that it is doubtful whether a surety having once given an undertaking to the Court on terms of an order requiring furnishing of such security can be allowed to withdraw. However, this point has not been raised by any of the parties. We, therefore, are not inclined to make a deeper appreciation of the said question. Now so far as the facts of the present case are concerned, the security was furnished. The learned trial Court without reference to any of the parties allowed the surety to withdraw. Having done so, to our mind, it was incumbent upon the learned trial Court to give reasonable time to the appellant to arrange and furnish fresh security in terms of the leave granting order. At the same time, we cannot remain unmindful of the conduct of the appellant apparent on the face of record. This is a special suit and is pending since the year 2001. We also have noted that on several occasions, the case was adjourned for recording evidence of the appellant but the same has not been produced. This regular first appeal is accordingly allowed and disposed of in the 113 following terms:- (i) The impugned judgment and decree, dated 6-12-2003 is set aside. The result would be that the suit shall be deemed to be pending before the learned District Judge, Bhakkar, before whom the parties shall appear on 4-12-2006. The records shall be immediately remitted to the learned District Judge. On the said date, the appellant shall furnish fresh security. In case the same is filed and accepted by the learned District Judge, only one date shall be fixed for recording entire evidence of the appellant and all steps will be taken to decide the suit on or before 31-3-2007. (ii) Needless to state that in case the appellant fails to furnish the security as directed, this R.F.A. would be deemed to have been dismissed and the impugned judgment and decree, dated 6-12-2003 shall remain in tact. (iii) No order as to costs.

4. A copy of this judgment along with records be immediately remitted to the learned District Judge, Bhakkar. F.B./Z-44/L Appeal allowed.