2005 PLP 1137 (CLC)

This civil revision arises from an order dated 24‑2‑2005, whereby, the learned Additional District Judge, Lahore allowed the petitioner to defend the suit filed against her by respondent subject to the furnishing of the bank guarantee equal to the suit amount.

2. Precisely, the facts giving rise to the filing of the instant civil revision are that respondent filed a suit for recovery of Rs.26,65.000 in the summary jurisdiction under Order XXXVII, C.P.C. basing his claim on 15 different cheques, alleged to have been issued by the petitioner in favour of the respondent from time to time over a period of about three years. It was alleged in the plaint that the cheques, subject‑matter of the suit, had been issued by the petitioner fox the repayment of loan(s) allegedly received by the petitioner from time to time, and the same on presentation in the bank, were dishonoured.

3. Petitioner entered appearance and eventually filed an application under Order XXXVII, rule 3, C.P.C. for lave to defend the suit and also raised certain preliminary objections that the suit was based on the forged documents and that the cheques were without consideration. She also averred that respondent's recovery suit in fact was a counterblast to her suit for declaration and cancellation of the questioned cheques. Record further reveals that petitioner was inducted as Female Passenger Services Supervisor in place of her late husband, namely, Muhammad Javed Khan, at the Lahore Airport, whereas respondent was already discharging his duties as Passenger Services Officer being senior in rank and status. It was asserted that after the demise of her husband, the respondent posed himself to be a considerate person, but in fact had nefarious designs and had also attempted to make illicit advances, which the petitioner is stated to have resisted. Subsequently, respondent appeared to have expressed his remorse, but manoeuvred the idea of entrapping the petitioner through his friend an employee of the Habib Bank Airport Branch, and in the garb of entering into a business transaction, she was induced to issue various cheques. The petitioner further stated that respondent had also manipulated her forged agreement.

4. The learned trial Court after hearing the parties came to conclusion that the petitioner was entitled to defend the suit subject to the furnishing of bank guarantee equivalent to the suit amount, and imposition of the said condition has been assailed by the petitioner through the present civil revision.

5. I have heard the learned counsel for the parties and perused the record appended herewith.

6. The learned counsel for the petitioner contends that the cheques in question are not only without consideration, but also void as a result of undue influence and deception. Further asserts that petitioner had also filed a civil suit to assail the legality of the questioned cheques alleged to have been issued by the petitioner.

7. On the contrary, Mian Israr‑ul‑Haq, Advocate for respondent No. 1 argued that the condition had rightly been imposed by the trial Court, and the lawful exercise of discretion is not open to any exception by this Court in its revisional jurisdiction. To substantiate his contentions the learned counsel relies on Abdul Rauf Ghauri v. Mrs. Kishwar Sultana and 4 others 1995 SCMR 925; Farid Akhtar Hadi v. Muhammad Latif Ghazi 1993 CLC 2015; Haji Karim and another v Zikar Abdullah 1973 SCMR 100; Ehsanul Haq Kiani v. Allied Bank of Pakistan Karachi 1984 SCMR 963 and Sh. Abdul Majeed v. United Bank Ltd. 1984 SCMR 1434.

8. I have scrutinized the case‑law referred to by the learned counsel for the respondent, and am of the view that the judgments sought to be retied upon by the learned counsel are of no avail having no nexus and bearing upon the facts and circumstances emanating from the instant case.

9. As regards Farid Akhtar Hadi's case (supra), it does not pertain to the grant or refusal of leave to appear and defend but a judgment on merit after recording the evidence. Whereas, Ehsanul Haq Kiani and Sh. Abdul Hameed's case (ibid) both relate to the banking jurisdiction and under the Banking Companies (Recovery of Loans) Ordinance, 1979. In the case of Haji Karim, consideration was not denied and that there were no allegation of undue influence and deception. Furthermore, the dispute raised related to normal commercial transaction. In Abdul Rauf Ghauri's case incidentally the august Supreme Court set aside the condition of furnishing the bank guarantee to be replaced/substituted by any solvent security.

10. Undisputedly, it is a matter of record that petitioner is a female and a widow, and admittedly, both the petitioner and respondent are working in the same organization, where the respondent is stated to be employed as her senior having much more superior status. It has also been noticed that in the plaint, general allegation only with regard to the payment of consideration has been levelled, spelling out absolutely no details whatsoever as to when, where, and in what manner the consideration was paid. Even in the reply to the leave application, such details are conspicuous by their absence. It is also evident from the record that the transaction, if any, inter se, the parties would be of not the result of a normal business relationship as both the parties were employees and did not conduct any business as a primary economic activity. Furthermore, 15 cheques, subject‑matter of the suit, are spread over a period of three years and without any action being taken by the respondent despite their dishonour for a considerable lapse of time. The allegation in the plaint read in the context of the defence taken, does not inspire too much confidence. Taking all these factors into account, the condition of furnishing the bank guarantee appears to be onerous.

11. That the trial Court had come to the conclusion that for adjudication of the case; parties must produce the evidence to prove their respective contentions. Thus, the defence even in the eyes of the trial Court was not illusionary. The only reason advanced for imposing the condition of furnishing the bank guarantee was "to save the interest of the plaintiff" which in my view is not sufficient ground available in law for the imposition of the onerous condition.

12. The aforesaid peculiar circumstances and salient features inevitably make out a case for interference and invalidation of the order impugned. Thus, by accepting this civil revision I set aside the order impugned whereby the petitioner was directed to furnish the bank guarantee, and direct that petitioner shall now furnish only the security to the satisfaction of tile trial Court within a period of two weeks. M.B.A./K‑98/L Order accordingly.