1983 PLP 3004 (CLC)

Muslim Commercial Bank Ltd., v. Tayab Sharif 1975 S C M R 393 ref Faizanul Haq for Applicant. Respondent in person. Date of hearing : 28th November, 1982. The respondent had filed a suit for Rs. 60,000 in the Court of Dist rict Judge, Karachi on the basis of a promissory Note. The suit was. under Order XXXVII, rule 1, C.P.C. The applicant made an application for permission to defend the suit. The learned District Judge vide the impugned order dated 10th October, 1982 granted permission to defend the suit on the condition that the applicant shall furnish surety/security for Rs. 60,000 within 21 days. The applicant aggrieved by this order has, therefore, filed the present revision application.

2. Learned counsel for the applicant has pleaded the amount of the promissory Note was paid by the applicant to the respondent by way of cheque. He has also produced Photostat copy of the cheque dated 25th January, 1981 which is for Rs. 50.000. It is, therefore, alleged that in view of this cheque which bears signature of the respondent on the back of it the learned trial Judge should have granted permission to defend without any condition. 3, The plea of the learned counsel is without any substance. The cheque produced in support of the plea of payment of the amount o promissory Note has been issued in favour of the drawer himself i.e., the g applicant. It is not in the name of the respondent to suggest that the amount was to be paid to the respondent towards the promissory Note. In view of this fact there was nothing wrong in the order of the trial Court whereby conditional permission was granted.

4. Learned counsel for the applicant has referred to the case of Fine Textile Mills Ltd. Karachi v. Haji Umer P L D 1963 S C

163. But there is nothing in this decision to suggest that imposition of condition on a defendant who has been granted permission to defend the case, is illegal. On the contrary it has been held that if the defence set up be weak or unsatis factory and 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 the Court. The '" decision referred by the learned counsel on the contrary runs counter to the plea set up by him in this revision application Another case referred by the learned counsel for the applicant is of Muslim Commercial Bank Ltd. v. Tayab Sharif 1975 S C M R

393. This case also does not help the applicant. What has been laid down by the Supreme Court to this case is as under "This was eminently a fit case for grant of leave and no just excep tion can be taken to the grant of leave to defend by the High Court. Whether conditions should have been imposed or not was in the discretion of the High Court and depended on the facts and circumstances of the case. The facts of this case if true, raised the plea of the debt being fully satisfied. In this view of the matter the grant of unconditional leave cannot be said to be unjustified or unreasonable." It is clear from the decisions referred to by the learned counsel that conditional permission to defend the suit, is in the discretion of the Court. In the present case the learned trial Court was not satisfied with the genuineness of the cheque relied upon by the defendant, therefore, he thought it fit to grant permission to defend on the condition that security shall be furnished by him. There is nothing on the record to suggest that the discretion was exercised by the learned Judge arbitrarily or whimsically. For the above reasons I find‑no substance in this revision application which is dismissed with costs. As the time of 21 days granted by the Court for furnishing surety/security has already expired, therefore, the applicant is now permitted to furnish surety/security as ordered by the trial Court within three weeks from the date of this order, M. Y. M. Petition dismissed.