2016 PLP 43 (YLR)

QALANDAR ALI KHAN, J.

Banaras Khan and Amjad Khan, petitioners, have challenged, through the instant revision petition, order dated 2-7-2014 of the learned Additional District Judge-II, Abbottabad, accepting application of the petitioners/defendants for leave to defend on the condition of deposit of Rs.736000 in the Court within 10 days.

2. The instant revision petition is the result of dispute between the parties over purchase of land measuring one Kanal situated in Patwar Halqa Havelian for consideration of Rs.700000 by respondents Nos.1 to 3/plaintiffs who paid the sale consideration to the petitioners/defendants whereupon Mutation No. 8364 dated 27-2-2013 was got attested in favour of respondents/plaintiffs. However, the transaction was subsequently revoked and the petitioners/defendants handed over cheque for return of amount of Rs.736000 to the respondents/plaintiffs, and a Mutation was also got entered which could not be attested. The petitioners/defendants filed a civil suit which was later-on withdrawn, followed by another civil suit, which, too, was withdrawn on return of original cheque to the petitioners/ defendants in the Court. In the suit of respondents/plaintiffs for recovery of Rs.736000 under Order XXXVII, C.P.C., leave to defend was granted to the petitioners/defendants but subject to condition of deposit of Rs.736000 within 10 days of the decision.

3. The petitioners/defendants have assailed the impugned order dated 2-7-2014 of the learned Additional District Judge-II, Abbottabad, inter alia, on the grounds that the cheque on the basis of which the suit was lodged by respondents/plaintiffs was in the possession of the petitioners/defendants through order of the Civil Court, therefore, the impugned order was without jurisdiction.

4. Arguments of the learned counsel for the parties heard, and record perused.

5. In a suit for recovery of Rs.736000 by respondents Nos.1 to 3/plaintiffs against the petitioners/defendants under Order XXXVII, C.P.C. on the basis of agreement deed dated 2-5-2013, the learned Additional District Judge-II, Abbottabad, accepted application of the petitioners/ defendants and granted them leave to defend subject to the condition of deposit of Rs.736000 in the Court within 10 days vide impugned order dated 2-7-2014.

6. The parties, admittedly, had entered into a sale transaction in respect of land measuring one Kanal and the petitioners/defendants had received the sale consideration of Rs.700000. The sale transaction was later-on revoked with consent of both the parties, and under an arrangement between parties, the sale consideration was to be returned by the petitioners/defendants to the respondents/ plaintiffs, and for the purpose, a cheque for amount of Rs.736000 was handed over by the former to the latter. The cheque on presentation was, however, dishonored. Anyhow, the parties entered into agreement vide deed dated 2-5-2013, which formed basis for suit under Order XXXVII, C.P.C. Therefore, plea of the petitioners/ defendants that the suit was based on a photo copy of the cheque is devoid of force. On the other hand, the impugned order was passed by the learned Court on application of the petitioners/defendants for leave to defend. Under Order XXXVII, Rule 3(2), C.P.C. the Court is empowered to grant leave to defend "unconditionally or subject to such terms as to payment in to Court, giving security, framing and recording issues or otherwise as the Court thinks fit."

7. As such, grant of leave to defend to the petitioners/defendants by the Court subject to condition of deposit of amount of Rs.736000 was within the jurisdiction of the Court conferred through the said provision of law, which is unexcep-tionable. The revision petition against the exercise of such powers by the Court is, therefore, devoid of substance, hence dismissed. ZC/74/P Revision dismissed.