PLJ 2022 Lahore (Note) 10
Civil Procedure Code, 1908 (V of 1908)--
----O.XXXVII, Rr. 1 & 2--Suit for recovery--Pronote against publishing of proclamation in news paper--Direction for submission of written statement and surety bond--Non-compliance of order--Ex-parte decree--Providing of sufficient opportunities to appellant to filing of written statement and surety bond--Non-producing of evidence by appellant--Challenge to--Appellant played hide and seek with Court of law--Trial Court while showing sympathetic attitude granted sufficient opportunities to appellant to file his defence as well as surety bond, but he remained indolent--The law favours vigilants and not indolents--Neither statements of witnesses were cross-examined nor any evidence in rebuttal was produced by appellant trial Court was left with no other option but to decree suit of appellant and this Court concurs with same--Appeal dismissed.
[Para 4] A, B & C
Malik Javed Akhtar Wains, Advocate for Appellant.
Mr. Muhammad Ayub Buzdar, Advocate for Respondent.
Date of hearing: 10.9.2015.
PLJ 2022 Lahore (Note) 10
[Multan Bench, Multan]
Present: Ch. Muhammad Masood Jahangir, J.
Syed ZAFFAR ABBAS--Appellant
versus
ABDUL RASHEED--Respondent
RFA No. 179 of 2009, heard on 10.9.2015.
Judgment
By filing the instant appeal, the appellant/defendant has called in question the judgment and decree dated 28.9.2009 passed by the learned Addl. District Judge, Taunsa Sharif, by virtue of which suit for recovery of Rs. 4,00,000/-filed under Order XXXVII rules 1 and 2 of the Civil Procedure Code, 1908 by the repondent/plaintiff was decreed.
2. The synopsis of the case are that the respondent/plaintiff instituted a suit for the above referred amount on the basis of pronote dated 24.11.2007 (Exh.Pl) against the appellant/defendant on 18.7.2008. Despite proclamation published in the newspaper, the appellant/defendant did not bother to attend the Court and the learned trial Court was compelled to initiate ex-parte proceedings against the appellant/defendant vide order dated 31.10.2008. Thereafter, an Application for setting ex-parte proceedings was moved by the appellant/defendant and on the consensual statement of the learned counsel for the respondent/plaintiff, the said application was allowed and leave to defend the suit was also awarded to the appellant/defendant with a direction to him to furnish written statement along with surety bond equivalent to the claim of respondent/plaintiff vide order dated 17.7.2009 and the case was adjourned to 28.7.2009. On the said date, the surety bond was not submitted and the appellant/defendant moved an application for seeking adjournment to file his written statement as well as surety bond. The learned trial Court while showing sympathetic attitude adjourned the case for submission of surety bond along with written statement for 29.7.2009 with a warning that on failure the right of defence would be closed. On the next date of hearing, the needful was not done and the case was again adjourned for the compliance of order dated 28.7.2009 when the appellant/defendant neither attended the Court nor submitted written statement as well as surety bond in compliance of order dated 28.7.2009. The learned trial Court after recording ex-parte evidence of the respondent/plaintiff decreed the suit vide impugned judgment and decree dated 28.9.2009, hence, the instant appeal.
3. Arguments heard and record scanned.
4. The above referred history of the case leaves no room that the Appellant/defendant played hide and seek with the Court of law. He was proceeded against ex-parte on 31.10.2008 but the said proceedings were set aside when learned counsel for the appellant/ defendant made a consensual statement before ' the learned trial Court and the appellant/defendant was also directed to furnish his written statement along with surety bond, who remained fail to submit the same despite availing of several opportunities. The learned trial Court while showing sympathetic attitude granted sufficient opportunities to the appellant/defendant to file his defence as well as surety bond, but he remained indolent. The law favours the vigilants and not the indolents. The learned trial Court was compelled to initiate ex-parte proceedings against the appellant/defendant once again when he neither turned up before the Court nor submitted his written statement as well as surety bond. The negotiable instruments attain presumption of truth under Section 118 of the Negotiable Instruments Act, 1881. The respondent/plaintiff produced Sh. Muhammad Sana Ullah (PW.2) and Abdullah Shah (PW.3), the attesting witnesses of the receipt before whom the amount was borrowed by the appellant/ defendant and pronote (Exh.Pl) and receipt (Exh.P2) were executed. The respondent/plaintiff also appeared as his own witness as PW. 1. Neither the statements of the witnesses were cross-examined nor any evidence in rebuttal was produced by the appellant/defendant, therefore, the learned trial Court was left with no other option but to decree the suit of the appellant/defendant and this Court concurs with the same.
5. The epitome of the above discussion is that the instant appeal has no force, which is dismissed with no order as to cost.
(Y.A.) Appeal dismissed
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