MAHTAB HUSSAIN vs MUHAMMAD ASLAM S — 2024 CLC 2038 PESHAWAR-HIGH-COURT

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MAHTAB HUSSAIN VS MUHAMMAD ASLAM S.96, O.XXXVII, Rr.1, 2(2) & 3---Recovery suit on the basis of promissory notes---Non-fulfilment of condition precedent for grant of leave to defend despite availing numerous opportunities---Effect---Suit was initially decreed ex parte---Leave to appear and defend the suit was allowed in post-remand proceedings subject to furnishing security bonds with two sureties---Contention of the appellant was that he could not furnish the sureties bonds due to strike of revenue officers as he could not get Fard of the properties of the sureties and the leave once granted could not be withheld subsequently---Validity---Court has been given discretion in the matter of attaching condition or otherwise to the grant of leave to defend---Leave granting order in favour of appellant was not a full and final order rather it was conditional and its perpetuity was subject to fulfilment of condition i.e. deposit of security bond with two sureties, therefore, order granting leave to defend the suit could only be pressed into service when imposed condition was to be fulfilled by the defendant, otherwise, it would be deemed that no leave to defend had been granted---Failure of appellant in submission of security bond, a pre-condition for leave to defend, amounts to default in obtaining leave to defend the suit and same automatically pushed the case back to the domain of R. 2(2) of O.XXXVII, C.P.C. which, in case of default of defendant in obtaining leave to defend, enabled the court to pass a decree in favour of plaintiff---There was no restriction on the appellant to present the sureties and bond before the trial court to show his bona fide and had requested for adjournment for production of property documents of sureties, however, on each date of hearing the appellant sought simple adjournments which could not justify the contention of the appellant that due to strike of Patwaris, Fard of property could not be obtained so that the same might be annexed with the bond as a proof of financial reliability of sureties---Regular First Appeal was dismissed accordingly.

MAHTAB HUSSAIN vs MUHAMMAD ASLAM S — 2024 CLC 2038 PESHAWAR-HIGH-COURT

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