2001 SCMR 60 (PLP)

CH. MUHAMMAD ARIF, J.

This appeal by leave of the Court is directed against the judgment, dated 9-3-1992 of the .Lahore High Court, Multan Bench dismissing in limine appellant's Regular First Appeal No.26 of 1992 maintaining the decree made in favour of respondent herein by the learned District Judge, Khanewal in a suit, under Order XXXVII, C.P.C.

2. The respondent herein brought a suit against the appellant seeking recovery of an amount of Rs.22,

400. After receipt of notice the appellant applied for permission to defend the suit on the ground that the pronote, made the basis of the suit under Order XXXVII, C.P.C. by the respondent, was forged, fictitious and without consideration. His plea was that he did not owe any amount to the plaintiff. After obtaining written reply to the application to appear and defend and after hearing the learned counsel for the parties, the learned District Judge repelled the plea of the other side that the same was beyond time and proceeded with allowing the same subject to his furnishing personal surety bond in the sum of Rs.22,400 till 9-2-1992 on which date the matter was further directed to be listed after the furnishing of the surety bond for a fresh date for the submission of the written statement. On account of the failure of the appellant to do the needful by 9-2-1992, the, matter was postponed to the next date i.e. 10-2-1992, then. On 10-2-1997 the suit of the plaintiff was decreed and defendant's tight to defend the same was resolved against him on account of his failure to furnish the requisite surety bond. Remaining unsuccessful in the Lahore High Court, Multan Bench, the appellant was granted leave by this Court on 28-3-1993 as below:-- "

2. Contention of the learned counsel for the petitioner is that on 9-2-1992 when the case was taken up by the learned District Judge counsel made an oral request for furnishing surety bond next day and the case was adjourned for doing so to the next day; otherwise there was no reason to postpone the hearing. On the next day, personal bond was submitted before the Court which was placed on record. In the circumstances the suit of the respondent should not have been decreed. Affidavit of the counsel who had appeared before the learned District Judge has ,also been filed. "

3. Mr. Muhammad Sayeed Akhtar, learned counsel for the appellant has reiterated the very plea which he had raised at the time of grant of leave and by referring to the 'Diary-sheet' in the case before the learned District Judge, it is contended that the oral request made on 9-2-1992 was granted and the failure on the part of the learned District Judge to record the same in the 'CHATTA ' came about for the reason that such orders are not recorded by the Presiding Officers and that in this case the Reader of the Court had done the same.

4. We have considered the plea being raised in juxtaposition with the material on the record. We are not inclined to agree with the learned counsel that there was any inaccuracy in the Court record. Orders, dated 18-1-1992 and 9-2-1992 run counter to the plea that an oral request was made by Mr. Muhammad Younas Sheikh, Advocate on the later date and that the same was allowed. The operative part of the order reads thus:-- It was on 10-2-1992 that the suit was decreed as above and the penultimate paragraph of judgment reads thus:-- "Today Abdullah defendant is present alongwith the surety bond which has been added to the judicial file without attesting the same as the same was not submitted till 9-2-1992." Even the earlier part of the judgment, dated 10-2-1992 took notice of the fact that in spite of specific direction in that regard the appellant had failed to submit the requisite personal surety bond in the sum of Rs.22,

400. Even otherwise, the genuineness of the judicial record cannot be sacrificed at the altar of expediency of a litigant. The fact that a reference to the alleged oral request was also made in the Memo. of Regular First Appeal before the High Court, will not alter the shape of things. We have looked in vain for any such affidavit of the learned counsel for the appellant (defendant in the suit) in support of the plea which is being raised for the first time in this Court after the dismissal of Regular First Appeal No.26 of 1992 by the High Court.

5. The appellant had all the time in the world to comply with the direction, dated 18-1-1992 and that too by submitting a personal surety bond in the sum of Rs.22,400 between 18-1-1992 and 9-2-1992. He did not do so and his failure was rightly considered by the learned District Judge and the learned Judge in the Lahore High Court, Multan Bench as tantamount to admission of the claim of the other side.

6. No other point was urged in support of the appeal.

7. No ground for interference in the impugned judgment has been made out. The same is dismissed with no order as to costs. Q.M.H./M.A.K./A-39/S ??????????????????????????????????????????????????????? Appeal dismissed.