2009 PLP 2120 (YLR)

NADEEM AZHAR SIDDIQI, J.--By this application the defendant has prayed for condonation of delay in filing of application for leave to defend the suit. The learned counsel for the defendant states that notice of this case was published in daily Jang of Karachi on 19-3-2007 and on 26-3-2007 through some friends the defendant came to know about the pendency of the suit and approached the plaintiff, who promised him to return the cheque and to withdraw the suit. He then submits that on 5-12-2006 immediately on coming to know about the dis-honour of the cheque the defendant has prepared a Pay Order and delivered the same to the plaintiff and has produced a copy of the Pay Order along with bank statement to show that the said Pay Order was encashed and on 5-12-2006 when the cheque was dishonoured, sufficient amount was available in his bank account. He then submits that the defendant was kept under false hopes by the plaintiff, due to which the defendant has not engaged any advocate to defend the suit, therefore, application for leave to defend has not been filed by the defendant. Mr. Muhammad Anwar Tariq, learned counsel for the plaintiff has referred to order dated 23-5-2008 and states that he has already given his no objection for condonation of delay subject to furnishing security by the defendant. He then submits that the allegations contained in the affidavit in support of application under section 5 of the Limitation Act as well as under Order XXXVII rule 3, C.P.C. are disputed by the plaintiff and concession made by him is without prejudice to his right and states that he has no objection for condonation of delay. Learned counsel for the defendant does not want to avail the concession and submits that the defendant has a prima facie case and is entitled to condonation of delay without any condition. I have heard the learned counsel for the parties. It is now well settled principle of law that for condonation of delay each and every day is to be accounted for. However, keeping in view that heavy amount is involved, the defendant alleged that he was kept on false hopes by the plaintiff, that the defendant has paid the amount by Pay Order and that the learned counsel for the plaintiff has given his no objection delay can be condoned. The defendant has pleaded that due to false promises of the plaintiff he was prevented from pursuing his remedy and it appears to be in the interest of justice and equity that the delay may be condoned and leave to defend application be heard on merits. In the reported case of Habib Bank Ltd. v. Messrs Pazhong Traders 1986 CLC 1086 a learned Single Bench of this Court condoned the delay in filing leave to defend on the ground that plaintiff has not opposed the application. In some cases the Honourable Supreme Court has condoned the delay keeping in view the special circumstances of the case. In view of the above, this application is allowed as prayed and the delay in filing the application is condoned.

2. By this application the defendant has prayed for unconditional leave to defend the suit. Learned counsel for the plaintiff has frankly conceded for the grant of leave subject to furnishing surety and has referred to order dated 23-5-2008. Learned counsel for the defendant does not agree for the furnishing of surety and has argued the application on merits. The defence taken by the defendant is that just after the cheque was dishonoured the amount covered by the said dishonoured cheque was paid through pay Order. The learned counsel for the plaintiff by filing the Counter Affidavit has disputed that the amount covered by the dishonoured cheque was subsequently paid through Pay Order dated 5-12-2006. He submits that the payment through Pay Order was made as a routine payment which the defendant has to pay to clear the total outstanding amount of Rs.151.5 million and that the defendant is still in arrears of Rs.62 million. He then submits that for recovery of the balance a regular suit has been filed. The leave to defend can be granted to the defendant on showing a plausible defence and that triable issues are there. The discretion to grant leave unconditionally or conditionally rests with the Court to be exercised keeping in view the facts of each 'case and the judicial principles. In the matter the application was filed after long delay and the learned counsel for plaintiff has consented for condonation of delay and grant of leave with condition of furnishing surety. No doubt defendant has produced the photocopy of Pay Order to show that the amount covered by the dishonoured cheque was paid through Pay Order which was disputed by the plaintiff but it is a matter of evidence and the disputed facts cannot be decided at this stage. However it appears that the defendant has a plausible defence and is entitled to leave to defend the suit. In view of above, I would allow this application, grant leave to defend the suit to the defendant subject to furnishing surety in the sum of Rs.21 million. The surety be furnished to the satisfaction of the Nazir of this Court within four weeks. H.B.T./N-17/K Leave granted.