2005 PLP 626 (CLD)

1. Listed Application (C.M.A. No.6245 of 2001) under Order I, rule 10(2), C.P.C. seeks striking off the name of defendant No.2(b). Learned counsel appearing for the plaintiff, Mr. A. R. Akhter, submits that since defendant No.2(b) has already been joined pursuant to the direction of this Court; therefore, this application amounts to review earlier this Court s order. Under the circumstances, the application is dismissed and disposed of as such.

2. This application (C.M.A. No.9127 of 2001) under section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 has been moved by the defendant No.2(b) seeking leave unconditionally to defend. It is, inter alia, contended by the learned counsel for defendant No.2(b) that defendant No.2(b) is the widow of deceased guarantor, who is alleged to have executed the Personal Guarantee. According to the learned counsel, defendant No.2 has since passed away. No personal liability could be foisted on his legal heirs. Mr. A.R. Akhter, learned counsel for the plaintiff contends that since the right to sue had survived the deceased; therefore, defendant No.2(b) being the legal heir is liable to the extent of the guarantee extended by the deceased. Since such controversy can only be resolved and decided at trial after looking to the guarantee, the defendant No.2(b) has, therefore, made out a case for the grant of leave unconditionally. Leave is granted to the defendant No.2(b) for consideration whether the L.R. of the defendant No.2 are liable under the purported guarantee, if at all, executed by her deceased husband. The application (C.M.A. No.9127 of 2001) is disposed of in above terms.

3. Defendant No.4 has also filed the leave to defend application to challenge the very maintainability of the suit. Defendant No.4 has also disputed the signature on the letter of guarantee. In order to adjudicate the issue raised is found on factual and legal controversy. Accordingly, the application is granted unconditionally. C.M.A. No.298 of 2002 stands disposed of in above terms.

4. Through listed application (C.M.A. No.299 of 2002) under section 10 subsection (12) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 read with section 151, C.P.C., Mr. Saalim Salam Ansari, learned counsel for defendant No.7 contends that defendant No.7 s signature on the guarantee were forged. It appears that the handwriting of defendant No.7 was referred to the Handwriting Expert earlier, the Handwriting Expert called for the documents bearing the signature of defendant No.7 at the relevant time, the alleged guarantee was executed whereafter through another report dated 12-4-2004 expressed doubt as to the signature of defendant No.7 on the guarantee. Mr. A.R. Akhter, learned counsel for the plaintiff contends that the report of the Handwriting Expert is not conclusive as to the veracity claim made by the defendant No.7. Be that as it may, the fact remains that such report do create a doubt on the guarantee. Such issue could only be determined and adjudicated at the trial. Accordingly, defendant No.7 is also granted leave to defend the suit. C.M.A. No.299 of 2002 stands disposed of in above terms. 5 &

6. C.M.As. Nos.300 of 2002 and 301 of 2002 The applications appear to have been filed by the legal heirs of late Mr. A. D. Ahmer by his son and daughter respectively. It is urged by the learned counsel Ms. Sumiya Usmani that the legal heirs are not liable under the purported guarantee which is alleged to have been executed by their deceased father. According to her, right to sue does not survive the deceased. Though Mr. A. R. Akhter, learned counsel for the plaintiff disputes such facts. According to him under the terms of guarantee, the legal heirs of such deceased person are fully liable. Such issue can be decided at trial. Since this matter is pending for quite some time for consideration of leave to defend. Therefore, leave to defend is granted to the said defendants as well. The parties are directed to file issues by consent preferably within a week whereafter the request for appointment of Commissioner to record the evidence of the parties at an early date will be considered. C.M.As. Nos.300 and 301 of 2002 stand disposed of in above terms. M.B.A./H-43/K Order accordingly.