1990 PLP 753 (CLC)

(b) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑OXXXVII, Rr.l & 2‑‑‑Leave to appear and defend suit‑‑‑Security‑‑‑Grant of leave with or without security is within discretion of leave granting Court. 1973SCMR100and1973SCMR587rel. Ismail Kassim for Petitioners. Naseer Ahmed for Sayeed A. Shaikh for Respondents. Date of hearing: 18th April, 1989. SALEEM AKHTAR, J.‑‑These petitions will be disposed of by this judgment. A.D. Shahid Malik, the petitioner in both the petitions is carrying on business in the name and style of Malik Dyes and Chemicals Co. and Pak Arab Trading Agency. Respondent No. l filed suit No.323/84 against Shahid Malik and his wife (petitioner No. 2 in C.P. 50/88) in the Court of special Judge (Banking) Karachi for recovery of Rs.3,36,

536. It was alleged that overdraft facility granted to Shahid Malik in his cash credit account was utilised from time to time and on 31‑12‑1980 there was a debit balance of Rs.350,20.80 which was acknowledged by him. On 31‑5‑1984 a sum of Rs.3,36,536 was due which has not been paid. This was secured by mortgage of immovable property created by petitioner No.2. Respondent No.l also filed suit No. 266/84 for recovery of Rs.3,68,802.80 on the allegation that the A.D. Shahid Malik was granted overdraft facility to the extent of Rs.500,000 which was utilized and on 31‑3‑1984 80,68,803.80 was due and payable. The petitioners filed application for leave to appear acid defend both these suits which was granted on furnishing security in the sum of the suit amount on or before 22‑12‑1987. The petitioner No.l A.D. Shahid Malik, had gone to Bombay for kidney transplant. Petitioner No. 2 in petition No.50/1984 who is his wife also accompanied him and they returned in the last week of November, 1987. Petitioner No.l however remained confined to bed. The petitioner's son and attorney sought extension of time for two months and the learned Special Judge (Banking) granted extension upto 22‑1‑1988. The petitioner without furnishing any security has challenged the order dated 16‑11‑1987 whereby conditional leave to appear and defend was granted. It may be mentioned that the Bank filed another suit No. 528/84 against the petitioners for recovery of Rs.12,65,184.00 in this Court and leave has been granted to them. Mr. Ismail Oasim, the learned counsel for the petitioners had contended that as on the basis of one account two suits have been filed the later suit No.323/84 is barred by 0.11, R.2, C.P.C. From the plaint of both the suits it is clear that in suit No.266/84 loan was obtained by Shahid Malik in the _naine of Pak Arab Trading Agency of which he is the proprietor. Likewise in suit No.323/88 Shahid Malik had obtained loan in the name of his proprietary firm Malik Dyes & Chemicals. Therefore, on the basis of two different loans which were secured by different documents, respondent No.1 filed the aforestated two suits. Prima facie there seem to be two separate accounts. At this stage it will not be proper to enter into the merits of this controversy. The learned counsel then contended that the statement of account filed by respondent No.l is incorrect. The petitioners have not given details of the incorrect entries therefore, in these circumstances the learned trial Court was justified in granting conditional leave for defending the suit. The learned counsel referring to P L D 1963 S C 163, P L D 1983 Kar. 431, PLD 1986 Kar. 157 and 1975 S C M R 393 contended that in view of the principles laid down in these authorities the learned trial Court has acted without jurisdiction in granting conditional leave and requiring the petitioners to furnish security. There is no dispute that respondent No.2 has the jurisdiction to try the suit. After considering the grounds on which leave was sought by the petitioners respondent No.2 came to the conclusion that in the facts and circumstances of the case conditional leave should be ,granted. The impugned order does not suffer from lack of jurisdiction or any illegality or irregularity which may render the order a nullity in law or without jurisdiction. The grant of leave with or without security is within the discretion of the Court. Reference can ~B be made to 1973 S.C.M.R. 100 &

587. The discretion exercised by respondent No.2 is neither arbitrary nor perverse. It is based on proper appreciation of facts and is legal and proper. The petitioners have secured the loan and in complying with the impugned order no difficulty will be faced by them. For these reasons we dismiss the petitions and extend the time for furnishing security as required by the impugned order for a period of one month from today. M.Y.H./A‑660/K Petitions dismissed.