1989 PLP 2290 (MLD)

"In favour of the plaintiff already exists a security created by way of equitable mortgage which would be accepted by the Nazir as security for the purposes of this case after satisfying himself as to its sufficiency for the claim made in the suit. In case it is found that the value of the mortgage property is less than the amount claimed in the suit the defendant shall furnish additional security to the extent of deficit amount within two months." The Nazir submitted a reference dated 30-7-1986, wherein he valued the property at Rs. 28,75,

700. The learned counsel for the defendants has filed objection to the reference. The plaintiffs contention is that it is not more than Rs.17,00,000 whereas according to defendants it is Rs.34,34,

000. By order dated 13-10-1986, Mr. Allauddin Munshi was appointed to assess the value of the property. Mr. Allauddin Munshi valued the property at Rs.40,00,

000. Mr. Iqbal Kazi the learned counsel for the plaintiffs has contended that the defendants have failed to comply with conditions to leave granting order and therefore there is no leave to defend and the suit be decreed. Mr. Nasim Farooqui has submitted that the security was already available and no new security was to be furnished. His submission is that the time be extended. Mr. Iqbal Kazi has invited my attention to Rule 100 of S.C.C. Rules (O.S.). It is advantageous to reproduce Rule 100 which reads thus: "Where security is ordered to be given to the satisfaction of the Nazir, the party ordered to give security shall take out a summons in Form No.6 in Appendix A and shall serve the summons upon the opposite party within 24 hours of the order if no time has been fixed by the Court for giving security, or if time has been fixed for giving security, not less than one clear day before the expiry of the time so fixed.'' A plain reading of this rule, in my opinion, leaves no doubt, that this rule contemplated two categories of cases. One category of cases is where a party obtaining an order for leave to appear and defend on furnishing security where no time was limited or fixed. The Rule fixes that time by stating, that in such a case where no time is limited or fixed then a party shall take out a summons in form 6 in appendix and shall serve the summons upon the opposite party within 24 hours of the order. The other category of cases is where a party is ordered to give security within the time limited for that purpose by the order. It will mean a category of cases where the Court has fixed or granted time to give security and the party who obtains such an order to give security does not give security within the period so granted or fixed by the Court. The rule does not place any embargo, on a party that is, the embargo is that such a party will not be permitted to give security after the expiration of such limited time as aforesaid or of such 24 hours unless the time is extended by the Court. In Mahanth Ram Das v. Ganga Das, A.I.R. 1961 S.C. 882 the facts were that a Bench of the High Court, while deciding an appeal in favour of the appellant, passed a peremptory order fixing the period for payment of deficit court-fee and the appellant made an application for extension of time before the time fixed had run out, but the application came on hearing before a Division Bench after period had run out, it was held that the High Court was not powerless to enlarge the time even if time fixed had expired." The pertinent observations on which I want to rely upon are: - "Such procedural orders, though peremptory (conditional decrees apart) are; in essence in terrorem, so that dilatory litigants might put themselves in order to avoid delay. They do not, however, completely estop a Court from taking note of events and circumstances which happen within the time fixed:" "Sections 148, 149 and 151 clothed the High Court with ample power to do justice to a litigant if sufficient cause was made for extension." In my opinion, the Court has power to extend such time even in cases where the time is not fixed or granted by the Court in the order permitting to give security; but the time is fixed by rule, viz. twenty-four hours from the date of the passing of the order to give security. As said earlier, the language of rule 100 of the Sind Chief Court Rules clearly indicates that position to be the correct position. I, therefore, reject the submission of Mr. Kazi on behalf of tile plaintiff and accept the submissions of Mr. Farooqui on behalf of the defendants. Coming to the merits of the application the defendants have averred that because of the circumstances mentioned therein they could not give the security. The defendants have also filed an affidavit in support of their contentions. It is an admitted position that there exists a security created by way of equitable mortgage with the plaintiff. There is a bona fide dispute about its valuation, Mr. Allauddin Munshi who is an architect of repute has estimated its valuation at Rs. 40,00,

000. I think the valuation is proper and I accept the same valuation. The defendant No. 2, tendered the security but died during pendency of I this suit. The defendant No. 3 has also signified his willingness to join the security proceedings relating to his joint immovable property. It is, therefore, found that there is good and sufficient cause to extend time sought for. The result is that the application (C.MA. No. 4589 of 1986) is dismissed. The applications filed by the defendant are allowed, the time is extended by a fortnight from today. Intervening delay is hereby condoned. Time would be deemed to have been extended retrospectively. If, however, security is not given within a fortnight from today the applications will be deemed to have been dismissed and the suit shall stand decreed without referring it further to the Court. M.Y.H/H-160/K Time for security extended.