2017 PLP 19 (CLCN)

SHAHNAWAZ TARIQ, J.

Through the captioned revision application, applicant Imran son of Muti-ur-Rehman has impugned order dated: 02.04.2013, passed by the learned VI Additional District Judge, Karachi South, whereby application moved by applicant under section 151, C.P.C. read with section 141, C.P.C. was declined.

2. The relevant facts depicted in the instant revision application are that respondent No.1 filed summary suit for recovery under Order XXXVII, Rules 1 and 2, C.P.C. before the Court of District Judge, Karachi South, which was transferred to the Court of learned VI Additional District Judge, Karachi South. It is stated that the respondent No.1 is a registered partnership firm which deals in the business of different commodities. The applicant is a sole proprietor of Al-Harmein International and deals with the business of exporting and manufacturing textile. In pursuance of certain business transactions, the respondent No.1 advanced loan to the applicant for the sum of Rs.48,40,000/- during the period of September 2009 till November 2009, with a promise to pay on demand. The said payment was made through several cross cheques and the remaining was paid in cash.

3. It is further averred that applicant issued two postdated cheques as security and its details are mentioned as under:- i. Cheque No.HMC 38969536 dated 11.02.2010 drawn on Habib Metropolitan Bank Limited, Main Branch amounting to Rs.2,640,000/-payable to the Ideal International. ii. Cheque No.HMC 38969537 dated 20.02.2010 drawn on Habib Metropolitan Bank Limited, Main Branch amounting to Rs.2,200,000/- payable to the Ideal International.

4. It is further stated that in the month of March 2010, the applicant requested respondent No.1 to realize the loan by way of encashment of said cheques and assured that both cheques will be honored by the concerned bank. The respondent No.1 presented both cheques for encashment before the bank but same were dishonored due to the closure of account. The respondent No.1 lodged report at Police Station Preedy against fraudulent activities of the applicant vide FIR No.466 of 2010, under section 489-F, P.P.C.

5. It is further asserted that the applicant filed leave to defend the subject suit and denied the averments of the plaint. It was also stated that the said cheques were never issued by the applicant and the signatures on the cheques did not belong to him and such contentions were ratified by the Examiner Report issued by the office of the Assistant Inspector General of Police, Forensic Division Sindh, Karachi vide letter dated 11.10.2010.

6. It is also averred that the learned trial Court granted leave to defend the suit vide order dated 05.01.2013, subject to deposit the security amount equivalent to Rs.48,40,000/- in shape of bank guarantee against two bounced cheques with the Nazir of District Karachi South within 20 days after passing of the said order. The applicant preferred application under section 151, C.P.C. with prayer to amend the order dated 05.01.2013, in the light of case law reported in 1995 SCMR 925, and the documents of immovable property already deposited with the Nazir as surety in bail application moved by applicant, also be kept as surety in the summary suit, but the said application was declined by the learned trial Court.

7. Learned counsel for the applicant contended that the impugned order is not sustainable under the law, as the applicant is facing criminal trial as well as civil proceedings for recovery of the subject amount and both proceedings are pertaining to the same transaction. He further contended that applicant has been regularly appearing in criminal case after his enlargement on bail and now the last witness is to be examined in the trial. He further contended that the applicant's father in law stood his surety in criminal case and furnished the title documents of his house and the price of said property as per market value is about Rs.1,00,00,000/- but the trial Court has not considered this very aspect while passing the impugned order.

8. Learned counsel further contended that the trial Court vide order dated 05.01.2013, granted leave to defend subject to furnishing bank guarantee equivalent to the amount of Rs.48,40,000/-, and subsequently said order was modified and the applicant was allowed to furnish the solvent surety, but the trial Court declined to accept the same surety in summery suit on the plea that the said property was already accepted as surety in criminal case. He further contended that there is no bar under the law that the property documents deposited in criminal case could not be accepted as surety in civil proceedings. He further contended that the signatures of the applicant on both cheques are dissimilar and highly doubtful as per opinion of Assistant Inspector General of Police, Forensic Division Sindh, Karachi, vide letter dated 11.10.2010. He further contended that applicant has a good case on merits but the learned trial Court has regretted his application on mere technicalities without considering its peculiar circumstance.

9. While controverting the contention raised by the learned counsel for the applicant, the learned counsel for the respondent No.1 vehemently contended that the instant revision application is not maintainable as order passed on interlocutory application cannot be challenged under section 115, C.P.C. He further contended that applicant has failed to point out any illegality or irregularity committed by the trial Court while passing the impugned order. He further contended that applicant had moved an application under section 151, C.P.C. before the learned trial Court as such the order passed by the Court was within its jurisdiction and competence.

10. Learned counsel for the respondent No.1 relied on the case of Moulvi Muhammad Azeem v. Alhaj Mehmood Khan Bangish and another, 2010 SCMR 817, wherein the Hon'ble Supreme Court has observed that judgments and decrees passed by both the Courts below were maintained by High Court in its exercise of revisional jurisdiction. Plea raised by defendant was that High Court had no jurisdiction to constitute committee to probe into the matter regarding mis-appropriation of funds. Supreme Court declined to exercise its discretion in favour of defendant. Leave to appeal was refused. This case law is distinguishable as summary suit has not been yet decided. Learned counsel also relied on the case of Murtaza Hasseb Textile Mills v. Sitara Chemical Industries, 2004 SCMR 882, wherein the Hon'ble Supreme Court has observed that trial Court directed the defendant to deposit surety amount within one month. Defendant failed to comply with the order and trial Court had no option but to decree the suit. High Court maintained the judgment and decree of trial Court. Conduct of the defendant as determined by the trial Court was certainly contumacious and no illegality whatsoever had been committed by the High Court in dismissing the appeal. This case law is also distinguishable as summary suit has yet to be decided. Learned counsel also relied on the case of Government of Balochistan and another v. Syed Abdul Qadir Algilani and 6 others, 2010 CLC 251, wherein it was observed that concurrent findings of facts arrived at by the Courts below, cannot be interfered by the High Court while exercising its revisional jurisdiction under section 115, C.P.C. This case law is also distinguishable because the summary suit is still sub-judice. Learned counsel further relied on the case of Muhammad Naeem v. The State, PLD 2008 Karachi 398, wherein it was observed that surety papers which applicant intended to keep as surety in his case, had already been accepted by the trial Court in earlier case. Charge having already been created over property by said surety documents by pledging said documents before the competent Court, further charge could not be created over property which has already been pledged by competent Court, unless said property had been redeemed by the Court. Further pledge of the same property was not permissible under the law. This case law is also distinguishable from the peculiar circumstances of the present case, as in referred case law two separate criminal cases were lodged against accused persons, and the trial Court had directed them to furnish separate sureties, while in present revision application, the criminal case as well as summary suit are outcome of the same subject cheques against the applicant.

11. Perusal of the record and consideration of the arguments advanced by the parties reflect that allegedly applicant had obtained loan from respondent No.1 and issued cheques in its name, but subsequently, when those cheques were produced before the concerned bank same were dishonored. The respondent No.1 lodged FIR No.466 of 2010, under section 489-F, P.P.C. at Police Station Preedy and applicant was arrested, but enlarged on post arrest bail by High Court vide order dated 09.12.2010. It is also essential to mention that during the course of investigation both cheques were sent to the office of the Assistant Inspector General of Police, Forensic Division Sindh, Karachi, for verification of the alleged signatures of the applicant available on subject cheques and as per Forensic Division report vide letter dated 11.10.2010, the signatures of the applicant and the signatures appearing on both cheques were found dissimilar. Furthermore, the applicant has been facing trial vigilantly and never misused the concession of bail and prosecution has examined all the material witnesses and at present the last witness is to be examined.

12. It is significant to mention that respondent No.1, during the adjudication of the criminal case also filed the subject summary suit against applicant under Order XXXVII, Rules 1 and 2, C.P.C. for recovery of the said loan amount. The applicant filed application for grant of leave to defend which was allowed vide order dated, 05.01.2013, by the learned trial Court with direction to deposit bank guarantee equivalent to the suit amount. The applicant again filed application under section 151, read with section 141, C.P.C. with prayers to modify the order dated 05.01.2013, and accept the title documents of the immoveable property owned by his father in law which were already deposited in criminal bail application moved by the applicant in criminal case, with the Nazir of District Karachi South, but learned trial Court declined his application vide order dated 02.04.2013, on the pretext that the said property was already deposited in the criminal case and charge was already created over it. It is also essential to mention that the said criminal case and subject summary suit have been filed by respondent No.1 pertaining to the same cheques allegedly issued by the applicant and both the cases are sub-judice before the respective judicial forums.

13. As per the valuation report furnished by the Nazir of District Court Karachi South, regarding the proposed property, its market value is about Rs.90,00,000/- to Rs.1,00,00,000/-, while the surety in summary suit is required in the sum of Rs.48,40,000/-. Consequently, I am of the considered view that the immoveable property which is valued more than the required surety can also be accepted in other cases irrespective of civil or criminal proceedings which should be upto the valuation of the purposed property. The wisdom behind the scheme of calling the surety is to ensure the presence of accused in criminal case and the recovery of decretal amount in civil proceedings. The same property can be accepted as subsequent surety in any other case subject to its actual value. Therefore, the, applicant could not be deprived on the sole ground that the proposed property was already accepted as surety in the criminal case which is sub-judice against him. Moreover, the surety is father in law of the applicant who is residing in the same house, therefore, it would not be difficult for the trial Courts to satisfy the decretal amount by initiating legal proceedings in civil suit as well as to penalize the surety in case the applicant disappears during the trial of the criminal case. It is well settled law that the case must be decided on merits rather than legal technicalities.

14. Considering the peculiar circumstances of the controversy, the instant revision application is converted into Constitution Petition and same stands allowed. Consequently, the impugned order dated 02.04.2013, passed by the learned VI Additional District Judge, Karachi South, is set-aside and the learned trial Court is directed to accept same surety documents in summery suit which were already furnished as the surety in criminal case lodged by the respondent No.

1. ZC/I-3/Sindh Petition allowed.