2014 PLP 1830 (SCMR)

AMIR HANI MUSLIM, J.

The facts relevant to the filing of these proceedings are that the respondent filed a Suit under Order XXXVII, Rule 2, C.P.C. on the basis of the cheques claimed to have been issued by the appellant for recovery of an amount of Rs.25,80,000.

2. On notice, the appellant made an application for leave to defend, which application was allowed conditionally by the District Judge, Karachi (South) on the terms that the appellant shall submit Bank guarantee to the tune of claimed amount. The appellant made an application for exemption of the condition, which application was dismissed. The appellant made another application seeking substitution of Bank guarantee by deposit of title documents of the property. The said application too, was rejected and by its judgment dated 15-1-2007, the trial Court decreed the suit.

3. The appellant filed Appeal before the learned Sindh High Court, which Appeal was admitted to regular hearing and apparently on the stay application, the learned High Court ordered that the appellant to furnish security/bank guarantee against the decreetal amount. The appellant claims that he has complied with the order of the learned High Court by deposit of the title documents of the property equivalent to the decreetal amount. The Appeal came up for hearing before the learned High Court and vide order dated 25-9-2008, the learned High Court directed the appellant to submit a fresh surety, against the decreetal amount inter alia on the ground that the title documents of the property, furnished as security were undervalue. Against the said order, the appellant preferred Petition for Leave to Appeal before this Court and vide order dated 2-12-2008, this Court remanded the matter to the learned High Court with the direction to accept the security furnished by the appellant.

4. On remand, the learned High Court dismissed the Appeal of the appellant vide impugned judgment inter alia on the ground that the original order passed by the trial Court for deposit of bank guarantee was not complied with by the appellant, therefore, the Appeal merited dismissal. Against which judgment, the present proceedings were filed by the appellant. Leave was granted to the appellant by the order of this Court dated 19-9-2013. The respondent was ordered to be proceeded ex parte after publication.

5. It is contended by the learned counsel for the appellant that the learned High Court while passing the impugned judgment has failed to notice that appellant has deposited the original title documents, which were of the same value and such offer was made by the appellant to the trial Court by the application as well. On dismissal of the said application, the trial Court has passed the judgment which judgment was challenged before the High Court and in the proceedings the said issue was resolved by intervention of this Court on 2-12-2008. He contended that the law permits substitution of bank guarantee by deposit of the title documents of the property of the equivalent value and in this respect he has relied upon the judgment of this Court in the case of Abdul Rauf Ghauri v. Mrs. Kishwar Sultana and 4 others (1995 SCMR 925) in support of his contention.

6. We have heard the learned Counsel for the appellant and have perused the record.

7. The learned High Court while passing the impugned judgment has lost sight of the fact that the appellant did make an application on 11-12-2006 before the trial Court seeking substitution of property as security deposit in place of bank guarantee, which application was rejected by the trial Court and the trial Court proceeded to pass the judgment without deciding the issues on merits inter alia on the ground of failure of the appellant to comply with the conditional order for grant of leave to defend.

8. We are of the considered view that the learned High Court has passed harsh order while dismissing the Appeal losing sight of the fact that the issue relating to the deposit of original title documents by the appellant as security was already decided by this Court in Civil Appeal No. 1712 of 2008 by its order dated 2-12-2008, while remanding the matter.

9. We are of the considered view that in such like matters, substitution ought to have been allowed in the given circumstances, and therefore, the order of the trial Court as well as of the High Court in refusing to allow the leave to defend application on furnishing of the original title documents of equivalent value of the decreetal amount and or the amount claimed are harsh in nature. Since the respondent is ex parte and the summary, suit which was filed in the year 2004, we therefore, allow this Appeal, set aside the judgments of the High Court as well as of the trial Court and remand the matter to the Trial Court for proceedings with the matter on merits. The original title documents deposited by the appellant in Ist Appeal No. 4 of 2007 before the High Court shall be treated as security for the purposes of grant of leave to defend and the trial Court shall decide the matter on merits. The appellant shall file his written statement within 3 weeks from today before the trial Court and the trial Court after framing the issues shall decide the matter expeditiously.

10. The Appeal is allowed in the above terms R&Ps of the trial Court and the High Court shall be returned forthwith by the office. MWA/J-2/SC Appeal allowed.