2008 Y L R 890

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD NAZIR---Appellant

Versus

QADEER BABAR---Respondent

Regular First Appeal No.101 of 2003, heard on 25th June, 2003.

Civil Procedure Code (V of 1908)---

----S. 1 4 8 & O . X X X V I I , R . 3---Conditional leave to defend---Furnishing of

surety bond---Extension of time---Trial Court granted leave to defend with a condition
to furnish surety bond till next date of hearing---Defendant, on the next date, filed
application under S.148 C. P. C. for extension of time---Trial Court dismissed the
application on the ground that it could not extend time and the suit was decreed---
Validity---At the time when application was submitted by the defendant, the Trial Court
had not passed a decree nor it had become functus officio---Trial Court could have
extended the time under S.148, C.P. C. for furnishing the surety bond---Judgment and
decree passed by the Trial Court was set aside and the case was remanded for decision
afresh---Appeal was allowed accordingly.

Sheikh Abdul Aziz for Appellant.

Ch. Muhammad Zafar Iqbal for Respondent.

Date of hearing: 26th June, 2003.

JUDGMENT

JAWWAD S. KHAWAJA, J.---This appeal filed by Muhammad Nazir

appellant/defendant impugns the judgment and decree, dated 10-2-2003 passed by the
learned trial Court decreeing the suit of Qadeer Babar respondent/plaintiff. The said suit
was filed on the basis of a promissory note and sought recovery of a sum of Rs.50,000
from the petitioner/defendant. The petitioner applied for leave to appear and defend under
Order XXXVII, C.P.C. The said application was allowed conditionally, subject to the
petitioner furnishing a surety bond by the next date of hearing i.e. 10-2-2003. On 10-2-
2003 the petitioner filed an application seeking more time to furnish the surety bond. The
said application was dismissed by the learned trial Court on the ground that the condition
imposed on the petitioner/defendant had not been fulfilled by him. As a consequence; the
learned trial Court held that the application for leave to appear and defend stood
dismissed on the date of the previous order because of the failure of the petitioner to fulfil
the condition imposed on him.

2. It is argued on behalf of the appellant that the impugned decree proceeds on the
erroneous premise that the time granted to the appellant for furnishing a surety bond
could not have been extended by the Court.

3. Qadeer Babar (respondent/plaintiff) has entered appearance through counsel. It is not

disputed on behalf of the respondent that the appellant had, in fact, moved an application
on 10-2-2003 for extension of time for the purpose of submitting a surety bond. At the
time the application was submitted by the appellant/defendant the learned trial Court had
not passed a decree or become functus offico. As such it does appear that the finding in
the impugned judgment that the Court could not have extended the time allowed to the
appellant for furnishing the surety bond, is not well founded. This legal proposition is
well settled and admits of no ambiguity in view of the express power allowed to a Court
under section 148, C.P.C.

4. Learned counsel for the respondent/plaintiff, however states that the appellant had been
grossly negligent because he was given ample time to furnish a surety bond but had failed
to avail the opportunity allowed to him. This argument can, at most, justify, the
imposition of costs on the appellant but is not sufficient to deprive him of his right to
defend the suit when the learned trial Court has itself held that the matter in controversy
requires evidence.

5. In the foregoing circumstances, the impugned judgment and decree, dated 10-2-2003
are set aside subject to payment of Rs.2000 as costs.

6. Since both parties are represented, they are directed to appear before the learned trial
Court on 7-7-2003. The learned trial Court shall proceed to decide the matter within the
current year if its work load so permits.

M.H./M-2100/L Case remanded.