Mian INAM ELAHI Versus ADDITIONAL DISTRICT JUDGE, LAHORE
ORDER
In a suit filed by the petitioner against the respondent No.2, the learned Trial Court, granted leave to defend to respondent No.2 vide order dated 21-6-2002. This was subject to furnishing surety bond in the suit amount. A surety bond was accordingly furnished whereby one Muhammad Hanif stood surety and bond himself in the sum of Rs.11,00,000. The bond was accepted by the learned Trial Court after examining the copy of the Register Haqdaran Zamin (Annex-J-11) whereby the said surety was owner of land measuring 17 Kanals, 6 Marlas of the value of Rs.7,00,000 per acres. After furnishing of the said bond the said surety proceeded to exchange land measuring 4 Kanals, 8 Marlas with another person. The petitioner filed an application praying that since the surety has alienated the land, subject-matter of the bond, the same be cancelled and since the condition for grant of leave stands violated, the suit be decreed after withdrawing the leave. The respondent No.2 in his reply stated that in the course of time the value of the land has doubled and that remaining land is sufficient to fulfil the obligation of the surety under the bond it was further stated that the surety owns 3-1/2 acres land and can, if so orders by the Court, furnish additional security. Learned trial Court recorded the statement of learned counsel for respondent No.2 on 30-1-2002, who stated with reference to the copy of Jamabandi for the year 1989-1990 that the surety has not sold away the land rather has exchanged it with a land which is more valuable then the said land and that surety is ready to bind himself with regard to the land obtained in exchange as well. The application was accordingly dated 30-1-2003 whereby cost of Rs.2,000 was imposed upon the surety to be paid to the petitioner and he was directed to furnish fresh bonds.
2. Learned counsel contends with reference to the cases of Messrs Industrial Air Control Pak. (Pvt.) Ltd. v. Messrs Alpha Insurance Company Ltd. (1994 CLC 1526) and Moinuddin Paracha and 5 others v. Sirajuddin Paracha and 22 others (1994 CLC 247) to contend that the learned trial Court ought to have withdrawn the leave and to have decreed the suit and as such the impugned order is without lawful authority. According to the learned counsel the proceedings under Order XXXVII are of peculiar nature and no leniency was to be shown in the matter before the learned trial Court. He also contends that surety stood debarred from alienating the property after furnishing the bond.
3. I have gone through the copies of the records, appended with this writ petition, with the assistance of the learned counsel. Having examined the record, I do not find any force in the said contention. So far as the said judgments, being relied upon learned counsel, are concerned. In both the said cases the defendants had failed to furnish the bonds. In the present case there is no denial that a bond had been furnished and was found to be adequate by the learned trial Court ad accepted. To my mind, the furnishing of the bond with reference to the said land would not at all constitute as embargo upon the surety to alienate land. However, alienation has to be subject to consequence provided in section 145, C.P.C. which makes the surety liable and provides for enforcement of the said liability. In any case the said act of the surety, cannot be made basis for such a harsh action against respondent No.2 as is being prayed for by the learned counsel. I have already stated above that the surety bond was duly examined and surety was found to be adequate. It is not the case of the petitioner that any fraud or concealment or suppression of facts was resorted to the time the surety bond was presented. It was of course after the acceptance of the bond that the said alienation in the form of an exchange was made. In any event it is case of the respondent No.2 that even remaining land is sufficient to meet the said obligation and of course an offer was immediately made to furnish the additional security to make the deficiency, if any. In this view of the matter, I do not find any case being made out for exercise of Constitutional jurisdiction. The writ petition is dismissed in limine.
S.A.K./I-186/L Petition dismissed.