P L D 2005 Karachi 276 (PLP)

Ali Mumtaz for Respondents. This appeal has been filed against the order dated 4‑10‑2002 whereby unconditional leave to defend the suit was granted by the learned Single Judge of this Court to the respondents in the suit filed by the appellant. Feeling aggrieved and dissatisfied with the order the appellant has assailed the same by way of this High Court Appeal. The grievance of the appellant as voiced by Mr. Badar Alam is that the respondents had failed to bring or establish plausible defence and a triable case which was necessary for grant of unconditional leave to defend and the facts and circumstances of the case did not warrant grant of unconditional leave to defend the Suit. It was further submitted that the learned Single Judge had been benevolent in allowing the respondents leniency and benefit which they were not entitled to as their defence was raised on superficial and baseless grounds. The learned Single Judge had propounded four (4) questions which he considered to be very material with regard to the question of execution of the cheques by free‑will of the concerned party and whether such cheques were issued in pursuance of a concluded contract or in pursuance of Minutes to execute a contract and it will be relevant to reproduce said paragraph as under:‑‑ "I do not want to discuss in detail the questions (i) whether minutes dated 21‑9‑1994 signed by the parties constituted concluding contract or not, (ii) whether payments through cheques were in consideration of said minutes or subject to execution of contract, (iii) whether defendants were compelled to sign minutes dated 21‑9‑1994 and cheque of Rs.17,50,000, (iv) whether defendants by free‑will signed said minutes against their own interest under decree passed by Court in Suit No.2 of, 1993. I am presently dealing the application for leave to defend, and I have to see only whether any plausible defence, question of law and facts has been raised in application for leave to defend or not and as detailed discussion of these questions at this stage may affect the interest of any party." Although the learned Single Judge held that he did not want to discuss the above questions in detail but it cannot be denied that the above questions were very material for deciding the fate of the leave to defend application. All the above four questions are such that if their answers are in the negative then they would certainly have a bearing on the execution/signing of the cheques. It was submitted by Mr. Badar Alam that the appellant could have obtained or forced the respondents to sign one cheque but not three cheques, one of which was also encashed. This contention is without any substance. The appellant being a Government managed, controlled and run establishment would always have an edge or influence over the respondents and signing of three cheques without there being a concluded contract would not stop the respondents from pleading influence, pressure or coercion. It may also be pointed out that grant of leave to defend the suit is a matter which rests on the discretion of the Court deciding the leave to defend application and unless it can be said that it was not exercised properly or there was some, irregularity or male tides the same will not be interfered with in an appeal. The appellant has failed to make out a case for consideration of this appeal and the same stands dismissed in limine along with the misc, application pending therein. M.B.A./P‑26/K Order accordingly.