Permission to appear and defend is required in Order XXXVII Suit

PLJ 2011 Lahore 126

Present: Ch. Muhammad Tariq, J.

MAQSOOD AHMAD--Petitioner

versus

Malik MUHAMMAD AFZAL--Respondent

R.F.A. No. 301 of 2010, decided on 31.3.2010.

Civil Procedure Code, 1908 (V of 1908)--

----O. XXXVII, Rr. 2 & 3--Suit for recovery on basis of pro-note--Permission to appear and defend the suit was granted subject to submission of surety bond--Neither written statement submitted nor surety bond was furnished--Ex-parte proceedings was recorded--Application for setting aside ex-parte decree was dismissed--Assailed--Validity--Petitioner did not submit the surety bond and had grossly violated the order passed by trial Court--Appellant could not point out any illegality or jurisdictional error in impugned judgment and decree--Conduct of appellant remained lethargic throughout--Not entitled for any concession--Appeal was dismissed.   [P. 127] A

Ch. Muhammad Ashraf Jalal, Advocate for Appellant.

Date of hearing: 31.3.2010.

Order

The respondent filed a suit for recovery, of Rs. 100,000/- under Order XXXVII, C.P.C. on the basis of pro note executed by the petitioner in favour of respondent. On 14.11.2008, the learned trial Court granted the petitioner permission to appear and defend the suit subject to submission of surety bond in the sum of Rs. 100,000/-. The learned trial Court further directed the petitioner to furnish surety bond on or before 27.11.2008 but the petitioner/defendant neither submitted his written statement nor furnished the surety bond as required by the learned trial Court. On 12.12.2008, the learned trial Court proceeded ex party against the petitioner/defendant. Against the said ex party order, the defendant filed an application on 24.02.2009 for setting aside ex party proceedings but later on he absented from the proceedings and the application moved by the defendant for setting aside of ex party proceedings was dismissed in default on 03.07.2009. The case was adjourned for recording of ex party evidence of the plaintiff/respondent on 09.07.2009 and after recording of evidence, the learned trial Court vide judgment and decree dated 24.08.2009 decreed the suit infavour of the plaintiff/respondent. Hence this regular first appeal.

2.  Learned counsel for the appellant contends that the petitioner was unheard by the learned Additional District Judge Pakpattan who misread the evidence and totally gave weightage to the respondent's evidence, which is against natural justice. It has been further contended that the petitioner version cannot be recorded through filing leave to defend the suit and the learned Additional District Judge has failed to decide the case without assigning reasons in the judgment and decree dated 24.08.2009. Learned counsel further contends that the judgment and decree is perverse, based on inadmissible evidence and has been passed in the absence of the petitioner. He has placed reliance on 1926 PC 142.

3.  Arguments heard. Record perused.

4.  The petitioner has not submitted the surety bond till today and has grossly violated the order dated 14.11.2008 passed by the learned trial Court. Further, learned counsel for the appellant could not point out any illegality or jurisdictional error in the impugned judgment and decree. The conduct of appellant remained lethargic throughout and thus, he is not entitled for any concession. This RFA is devoid of merit; hence dismissed in limine.

 (R.A.) R.F.A. dismissed.