1997 PLP 2394 (MLD)

This revision has been filed to challenge the order dated 30‑5‑1996 passed by the learned 1st Additional District Judge, Karachi (South) in Civil Suit No. 16 of 1995, whereby he granted to the applicant conditional leave to appear and‑defend the suit, filed by the respondent for recovery of Rs.3,43,319 based on six cheques issued by the applicant to the respondent. Briefly the facts appear to be that the aforesaid cheques were handed over by the applicant to the respondent towards the price of High Speed Diesel Oil supplied by the latter to the former. The cheques, however, when presented to bank were dishonoured whereupon the respondent first filed a direct complaint in the Court of AC and S.D.M., Kharadar, which complaint was dismissed and thereafter the suit was filed under the summary procedure of Order 37, C.P.C. The applicant applied for leave to appear and defend the suit on the ground that during the period between 12‑4‑1992 and 2‑6‑1992 cash payments of Rs.4,43,319 had been made by the applicant to the respondent and therefore the cheques were without consideration. Conditional leave to appear and defend the suit was granted by the impugned order on the condition that the applicant furnish security in the sum of Rs.3,50,

000. Contention of Mr. Akhtar Ali Mehmood, learned counsel for the applicant is that the applicant had disclosed good defence by producing the vouchers and receipts in respect of payments made to the respondent and therefore the leave should have been unconditional. He places reliance on the case of Messrs Kohinoor Textile Mills Ltd. v. Messrs Gharo Textile Mills Ltd. (PLD 1986 Kar. 157 (2)). In that case after setting out the circumstances under which leave to appear and defend a suit can be granted, it has been observed: "The defence raised according to the decisions of the House of Lord and according to the decisions of superior Courts in Pakistan, should not be a sham one but should raise a fair issue to be tried by a competent Court. By sham defence is meant that the facts alleged in the defence even if true would not amount to a valid defence in law, and a fair issue has been interpreted to mean a plausible issue on the sense that if the facts alleged are established there would be a tenable defence. In coming to a conclusion whether such a test is satisfied or not, the Court should take into consideration all the circumstances of the case as disclosed in the plaint and in the affidavits and other material that is available as was laid down by Boven, L.J., in Blaikerj v. Abrams (1898)77 L.T.255." The other case relied upon is that of Habib Bank Limited v. Messrs Pazhong Traders and 12 others (1986 CLC 1086). That case has also laid down the circumstances under which leave to appear and defend the suit can be granted, it has been held that: " As regards the principle that where the defendant has made out a good prima facie case, the Court should grant unconditional leave, in my view, good 'prima facie case' amounts to saying that the defendant has made out a plausible defence and to this extent, I am in respectful agreement with the learned Single Judge of the Lahore High Court." The respondent, of course denies all these payments as also the authenticity of the alleged vouchers and receipts. In the present case the applicant by letter dated 20‑5‑1992 undertook to pay the amount of the dishonoured cheques in monthly instalments of Rs.1,00,000 commencing from June, 1992. However, there is no other letter of the applicant to show that the alleged cash payments were in respect of the amount of the cheques. Further it appears from the vouchers and receipts produced alongwith the application for leave to appear and defend that most of these pertain to the period much prior to the writing of the said letter dated 20‑5‑1992. Six are of different dates of April 1992, four of May and two of June, 1992. Of these only four, dated 24‑5‑1992, 31‑5‑1992, 2‑6‑1992 relate to the period after the aforesaid letter. Apparently, therefore, these payments, at least those made before the date of the letter, had been taken into account while writing the, said letter. The amount of the vouchers and receipts pertaining to the period after the aforesaid letter total to Rs.1,45,000 and as such, it would appear that at best plausible defence can be said to have been made out only to the extent of Rs.1.d5,000 although that is not free from serious doubt as it is not in accord with the mode of payment given in the letter. In these circumstances, no fault can be found with the impugned order. However, I would give allowance to the applicant in respect of alleged payment of Rs.1,45,000 and would, therefore, reduce the amount of security from Rs.3,50,000 as directed under the impugned order to Rs.2,00,000 (rupees two lacs), to be furnished before the trial Court within one month from today. This revision is accordingly dismissed in limine and the impugned order is maintained subject to the above modifications.

2. In view of the above order, this application has become infructuous and is dismissed. A.A./S‑62/K Revision dismissed.