1998 PLP 961 (CLC)

Through this revision petition Matee Ullah (petitioner) sought modification of order, dated 15‑9‑1997 passed by the learned Additional District Judge‑IV, Rahimyar Khan, whereby the petitioner was granted conditional leave to appear and defend the suit for recovery of Rs.60,000 filed against him by Muhammad Jamshaid Iqbal (respondent) on the basis of dishonoured cheque.

2. Briefly stated the facts are that Muhammad Jamshaid Iqbal filed a suit under Order XXXVII of Civil Procedure Code on the basis of a cheque for recovery of Rs. 60,000 allegedly advanced to Matee Ullah, who in turn claimed that the plaintiff had requested him for Rs.60,000 as loan and the cheque was issued in this regard. The learned trial Judge while granting leave to appear and defend the suit made it conditional on furnishing bank guarantee in the sum of Rs.60,000.

3. Learned counsel for the petitioner submitted that the condition of giving bank guarantee was illegal and the learned Trial Court had acted with material irregularity. He submitted that the petitioner was not very well off and as such was unable to arrange the bank guarantee, which could only be obtained after depositing the entire amount with the bank. According to him, as the defence set up by the petitioner‑defendant raised friable issue, he was entitled to the grant of unconditional leave to defend the suit. In support of his contention that learned counsel for the petitioner relied upon Habib Bank Limited, Circle Office Multan v. Al‑Qaim Traders and another (1990 SCMR 686).

4. The contentions of the learned counsel for the petitioner have no merits at all. It was held in Mian Rafique Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. and another (PLD 1996 SC 749), referred before the trial Judge by the plaintiff‑respondent's counsel, that the grant of conditional leave was a matter within the discretion of the Court which was to be exercised keeping in view the facts and circumstances of each case. It was further held that if the defence disclosed in the affidavit of the defendant was found to be illusory or lacking bona fides or based on allegations of vague nature without any supporting material, leave could be granted on such terms and conditions which the Court night think fit. Even in the ruling referred before the Trial Court on behalf of the petitioner i.e., Messrs Ali Match Industries Ltd. and 3 others v. Industrial Development Bank of Pakistan (1997 SCMR 943) it was held that where defence set up at least raised a triable issue leave could be granted conditionally. In both the abovementioned cases leave was granted on furnishing bank guarantees.

5. The case of the petitioner is that the amount was borrowed by the plaintiff‑respondent from him and the cheque was issued for this purpose. In this petition for leave to defend the suit, he mentioned that he had asked the plaintiff/ respondent to return the cheque but he was told that the cheque had been lost. It is interesting to note that the petitioner allegedly gave the cheque for giving loan to the respondent but the cheque was dishonoured and was not paid by the bank as the petitioner had no money in his account. The petitioner neither filed any suit for cancellation of the cheque nor informed the bank to stop payment. Obviously, he has set up a very weak defence as observed by the trial Judge and in such a case imposition of the condition of Bank guarantee is neither unreasonable nor illegal.

6. In the case of Fine Textile Mills Ltd., Karachi v. Haji Umar (PLD 1963 SC 163) it was held as under:‑‑‑ "What is more is that even if the defence set up be vague or unsatisfactory or there be a doubt as to its genuineness, leave should not be refused altogether but the defendant should be put on terms either to furnish security or to deposit the amount claimed in Court. " The abovementioned case was also with regard to cheques which were dishonoured, on presentation for payment. In the said ruling it was further held as under:‑‑‑ "It is no doubt true that under section 118 of the Negotiable Instruments Act there is an initial presumption that a negotiable instrument is made, drawn, accepted or endorsed for consideration, but this presumption is rebuttable presumption and the onus is on the person denying consideration to allege and prove the same. " In the instant case, the presumption though rebuttable is that the cheque in question is for consideration and the onus is on the petitioner‑defendant to prove lack of consideration. In such a case the imposition of condition cannot be said to be perverse or capricious. This view is further supported by the pronouncements of the Supreme Court in the cases of Messrs Ark Industrial Management Ltd. . Messrs Habib Bank Limited (PLD 1991 SC 976) and Haji Karim and another v. Zikar Abdullah (1973 SCMR 100).

7. The learned Trial Court has rightly exercised the discretion in imposing) the condition while granting leave to appear and defend the suit. The impugned order does not suffer from any illegality or material irregularity and, therefore, l the revision petition is not competent. It is dismissed in limine. A.A./M‑552/L Revision dismissed.