2005 PLP 1690 (CLC)

Brief facts giving rise to the present appeal are that the' respondent filed the summary suit under Order XXXVII, C.P.C. for recovery of amount of Rs.4,26,000 against the appellant. After service of summons the appellant moved a time-barred application for leave to A defend the suit, hence he also filed an application under section 5 of Limitation Act. The respondent raised no objection to allow the said applications. Consequently, the application under section 5 of Limitation Act was allowed. Leave to defend was granted subject to furnishing security in the sum of Rs.4,26,000 and the matter was adjourned to 4-5-2004 for filing written statement. It appears that the said order was not complied with as the security was not furnished on or before A 4-5-2004, therefore, the appellant sought extension of time to furnish security. Time was granted from time to time but subsequently, on 15-7-2004 the appellant again moved such application but the respondent opposed to the said application. The trial Court dismissed the same and decreed the suit, hence the present appeal.

2. I have heard the parties Advocates and perused the record of this case very carefully.

3. It is an admitted position that a consent order was passed under which the appellant was granted leave to defend the suit by condoning the B delay in filing the said application. The suit was fixed on 4-5-2004 for filing written statement meaning thereby that the security was required to be furnished on or before 4-5-2004. Thereafter, the appellant moved applications on 4-5-2004, 6-5-2004, 14-5-2004, 15-5-2004 and 1-7-2004 for extension of time to furnish the required security. The Court granted the time as the respondent did not raise any objection to such extensions. On 6-4-2004 the Court granted last chance to the appellant to furnish the required security but in spite of that the appellant did not comply with the said order. However, on the subsequent date, time was further granted. The ground mentioned in the application for extension of time was that the owner of the property was out of station or out of city. This ground was taken in the applications dated 1-7-2004 and 15-7-2004. Before that the appellant took the ground that the security amount was very high, therefore, he simply requested the Court to extend the time. On one date viz. 14-5-2004 the appellant took the ground that due to strike he could not furnish surety. On one date he took the ground that the lease documents of immovable property might be accepted as security.

4. From the above position it is clear that the appellant was taking vague grounds for extension of time. The Court was generous in granting the time and showed leniency by extending the time so that the matter should be decided on merits but in spite of opportunities provided to the appellant he failed to avail any of the said opportunities and consequently, the trial Court was constraint to refuse the request of the c appellant as the respondent with whose consent the order to leave to defend was passed strongly opposed to the grant of the application, therefore, the trial Court was left with no option, except to refuse the application. The contention of the learned Advocate for the appellant that the order was harsh and the matter should be decided on merits has no force in view of above chain of circumstances. The learned trial Judge has exercised the discretion judiciously by keeping in view the principles for exercise of such powers. Even otherwise a consent order is not c required to be modified without the consent of consenting party. Reliance is placed on Noor Hussain v. Noor Ali PLD 1983 Kar. 448 and Muhammad Bibi v. Abdul Ghani PLD 1973 Kar.

444. After considering the material available on the record I am of the considered opinion that the impugned judgment and decree do not require any interference, hence the appeal is dismissed. H.B.T./M-255/K Appeal dismissed.