2005 PLP 851 (MLD)

Respondent No.4 filed a suit for recovery of Rs.14,09,872 on the basis of two cheques issued by the appellants which were dishonoured. Petitioners filed an application for leave to defend which was allowed subject to their furnishing Bank guarantee to the tune of amount i.e. Rs.7,04,936 within one month. It was further observed that in case of non-compliance of the order the application shall be deemed to have been dismissed. This was vide order dated 30-6-2001.

2. Learned counsel for the applicants challenged the afore-referred order on the ground that the direction to furnish Bank guarantee is not tenable in law and that the petitioners are Directors of Messrs Chumba Model Industries Ltd. Harrappa District, Sahiwal and in terms of Company Ordinance 1984 the respondent-plaintiff should have sued the company and under section 7 of the said Ordinance the civil Court has no jurisdiction to proceed under the law.

3. Learned counsel appearing for respondents-plaintiffs has submitted that the impugned order was an interim order; that while issuing pre-admission notice to respondents this Court had not stayed the proceedings and had only observed that the final judgment may not be announced; that the learned trial Court has dismissed petitioner's application for leave to defend as in terms of the impugned order the petitioner/defendant did not deposit the amount in question within time stipulated. He further submitted that the question of jurisdiction could only be raised if petitioner/defendants had been granted leave to defend. In support of the submissions made he relied on Messrs Platinum Insurance Company through Chief Executive v. Messrs Highways Bridge, Contractor International (Pvt.) Ltd. and another (1997 MLD 2394) and Messrs United Distributors Pakistan Ltd. v. Ahmad Zarie Services and another (1997 MLD 1835).

4. Heard.

5. Neither in the body of the petition nor during the arguments before this Court the petitioners/defendants have denied the liability to make the payment for which cheques had been issued by the petitioners which were dishonoured. The argument of the learned counsel for the petitioner that the learned trial Court should have decided the question of jurisdiction along with the application for leave to defend is not tenable as before the leave is granted the petitioners/defendants had no locus standi to attack maintainability of the suit. In Cotton Export Corporation of Pakistan (Pvt.) Ltd. v. Messrs Nagina Cotton Industries Ginning Pressing and Oil Mills and 6 others (1993 CLC 2217) at page 221 it was observed as under:-- "The question of maintainability of the suit can be considered in depth, after leave to defend is granted. Before obtaining leave to defend in a summary suit a defendant has no locus standi to attack maintainability of the suit.- - - - - - - - - - - - - - - - - - - - - - - - - -" So far as petitioner's objection with regard to the grant of conditional leave to defend is concerned the same has no force in view of the law laid down by the August Supreme Court in Col. (Retd.) Ashfaq Ahmed and others v. Sh. Muhammad Wasim (1999 SCMR 2832) wherein the conditional leave granting order was upheld in a suit under Order 37 Rule 2 C.P.C. This Court while issuing pre-admission notice to respondents on 23-7-2001 had directed that:-- "the learned trial Court may proceed with the case but no final judgment shall be announced. "This Court had not suspended the operation of the order which had been impugned in this Civil Revision, therefore, if petitioner failed to furnish Bank guarantee in terms of an interim order the consequence had to follow and his application had been rightly dismissed for non-compliance of the order in question."

6. For what has been discussed above, the impugned order is neither arbitrary nor against law declared to warrant interference in the revisional jurisdiction of this Court. This petition having no merit is therefore, dismissed. M.H./M-921/L Revision dismissed.