2015 PLP 510 (CLC)

ARSHAD MAHMOOD TABASSUM, J.

This R.F.A. has been directed against the judgment and decree dated 20-4-2011 passed by the learned Additional District Judge, D.G. Khan whereby he decreed the suit of the respondent-plaintiff for recovery of Rs.7,50,000 on the basis of promissory note dated 27-7-2009.

2. Briefly, the facts of the case are that the respondent on 11-1-2011, instituted suit for recovery of Rs.7,50,000 on the basis of pro note dated 27-7-2009, against the appellant averring in the plaint that on 27-7-2009, the appellant had borrowed an amount of Rs.7,50,000 payable on demand and executed a pro note and receipt dated 27-7-2009; that when the respondent-plaintiff demanded repayment of the said amount the appellant delayed the same on one pretext or other and ultimately refused to repay the same, hence the suit. The appellant submitted application for leave to appear and defend the suit on 15-2-2011, which was allowed vide order dated 17-3-2011, subject to furnishing surety bond in the sum of Rs.7,50,000 within ten days i.e. on 1.4.2011. The appellant failed to submit surety bond as directed by the learned trial court, instead on 1-4-2011 submitted application for extension in time for submitting the surety bond on the following ground:

The said application was however dismissed on the same day by the learned trial court with the following observations:

"On 17-3-2011, leave to defend to Muhammad Hashim defendant was granted allowing him to file written statement subject to furnishing surety bond in the sum of Rs.7,50,

000. Today, neither the surety bond has been filed nor written statement tendered on behalf of the defendant, rather an application has been moved for extension of time on simple score that surety has become ill. The name of surety and illness certificate has not been put up. Moreover, the application is not supported even by an affidavit. This court has already granted sufficient time of two weeks for filing written statement as well as surety bond, but the defendant failed to avail the opportunity granted to him. Application in hand being devoid of legal force is hereby rejected and consequently, the right of the defendant to file written statement and surety bond is hereby closed, requiring the plaintiff to produce his ex parte evidence on 6-4-2011."

3. The learned trial court then recorded ex parte evidence of the respondent plaintiff and then decreed the suit vide impugned judgment and decree, hence this R.F.A.

4. Learned counsel for the appellant has argued that the appellant had failed to submit surety bond due to the circumstances which were beyond his control and that he had submitted application for extension in time within the time which was fixed for submission of surety bond hence the learned trial court was obliged to consider the said application sympathetically and to extend time for submission of surety bond in the interest of justice and that by not doing so, the learned trial court has committed an illegality rendering the impugned judgment and decree as illegal. He has relied upon the case titled "Gulzar v. Bashir Akhtar and 2 others" (2004 CLC 1518).

5. Conversely learned counsel for the respondent has fully supported the impugned judgment and decree.

6. Heard. Record perused.

7. There is no denial of the fact that under section 148 of the C.P.C. it is discretionary with the court that where any period is fixed or granted for doing of any act it may enlarge such period. However, it is well-settled by now that discretion has to be exercised by a court of law judiciously and in the light of circumstances of each case. In the instant case, the appellant was directed to submit surety bond within ten days i.e. by 1-4-2011. It was for the appellant to have shown to the court that any justifiable circumstance did exist which prevented him from submitting the surety bond in time and which necessitated extension in time for that purpose. The application for extension in time is available on record which shows that in para No.3 of the said application (reproduced above) the appellant has mentioned that the person who had undertaken to submit surety bond on his behalf had fallen ill, but the appellant did not mention name of such person. So much so that the said application was not even accompanied by an affidavit in support of the facts stated therein. It has clearly been provided in Rule 2, Chapter 1-E of the High Court Rules and Orders, Volume-V that an assertion contrary to or outside the record or not supported by evidence already on record should be supported by an affidavit. The exact text of Rule 2 supra reads as under:

When affidavits necessary

2. When a memorandum of appeal, cross-objection on appeal, application for review or petition for revision or any other application or petition presented in a suit or appeal under the Code of Civil Procedure, or in a proceeding to which section 141 of the Code applies, contains an assertion of any fact or facts contrary to or outside the record, or not supported by evidence already on the record, such assertion shall be supported by one or more affidavits. Thus it appears that the appellant in a very casual manner requested for extension in time which request of his did not find favour with the learned trial court. These facts are duly mentioned in the order dated 1-4-2011, passed by the learned trial court whereby the application for extension in time was dismissed. The said order, therefore, calls for no interference. Reliance in this regard may be placed on the case titled Muhammad Ramzan and others v. Ghulam Qadir (2011 SCMR 659).

8. On dismissal of the application for extension in time filed by the appellant, the learned trial court recorded ex parte evidence of the respondent-plaintiff who produced the scribe of the pro note, namely, Sh. Kaleem Qureshi as PW-1. respondent-plaintiff himself entered the witness-box as PW-2 and produced Irshad Hussain as PW-3, who also supported the claim of the respondent-plaintiff. It is also noteworthy that even the appellant had not denied execution of the pro note and his signatures thereon, in his application for leave to appear and defend the suit. Thus the learned trial court after proper application of mind decreed the suit of the respondent-plaintiff to which no exception can be taken. This appeal, therefore, fails and the same is hereby dismissed. AG/M-308/L Appeal dismissed.