1988 PLP 53 (CLC)

Mian Allah Nawaz for Petitioner. Ch. Abdus Sattar for Respondent. The revision petitioners namely, Khalid Javed and Company have questioned the validity of the order dated 13‑1‑1987 pronounced by the Additional District Judge, Rahimyar Khan, who had granted the petitioners leave to defend the suit conditionally on its furnishing bank guarantee regarding the disputed amount.

2. The facts of this case, in substance, are that Javed Oil Industries, the respondent was to recover a sum of Rs.25,000 from the petitioners and Shahid Hussain one of the partners of the petitioner‑company issued a cheque worth Rs.25,000 in favour of the respondent which was dishonoured. The respondent was constrained to file a suit for the recovery of Rs.25,000 on the basis of said cheque. Summons were issued to the petitioners, who applied for leave to defend the suit. The learned trial Court permitted the petitioners to defend the suit conditionally on furnishing bank guarantee equivalent to the amount claimed by the plaintiff in the suit within one month. The same order has been complained against in this revision petition.

3. At the very outset the learned counsel for the petitioners stated at the bar that the suit of the plaintiff‑respondent may be decreed in case it was found that the petitioners had issued a cheque in favour of the respondent. All the partners of the petitioner‑company were summoned in person to appear before this Court today. Shahid Hussain one of the partners had issued the cheque in dispute. He has admitted his signature on the cheque and. conceded the execution of the said cheque. He, however, pleaded that the said cheque was issued by Ali Builders of which he was one of the partners and it was not issued by Khalid Javed & Co., the petitioner‑company. He can take this plea before the learned trial Court when the suit is tried on merits. Suffice to say that Shahid Hussain who is a partner of the petitioner‑company as well as Ali Builders, owed this amount and therefore, he issued a cheque worth Rs.25,

000. In this case the disputed debt is not a secured one and the learned trial Court was A justified in imposing a condition of furnishing bank guarantee under Order XXXVII, Rule 3 of the C.P.C. the relevant portion of which reads as under:‑ "R.3. Defendant showing defence on merits to have leave to appear‑ (1) The Court shall, upon application by the defendant, give leave to appear and to defend the suit, upon affidavits which disclose such facts as would make it incumbent on the holder to prove consideration, or such other facts as the Court may deem sufficient to support the application. (2) Leave to defend may be given unconditionally or subject to such terms as to payment into Court giving security, framing and recording issues or otherwise as the Court thinks fit."

4. The learned counsel for the petitioners has cited Abid‑ur‑ Rehman Khan v . Razi Ghazali 1983 C L C 1434 and Abdul Karim Jaffarani v. United Bank Ltd. and two others 1984 S C M R 568 in support of his contention that the condition should not have been imposed on the petitioners while granting leave to defend the suit. In 1983 C. L C 1434, the learned trial Court had not cared to see the prima facie strength of the suit and the merits of the proposed defence and it was held that leave to defend should have been granted unconditionally. In this case, the learned trial Court has viewed the defence of the petitioners in the original suit, who have not denied the issuance of the disputed cheque. In 1983 S C M R 568, it has been held that no hard and fast rules can be laid down for determining the question as to how the discretion vesting in the Court for the conditional grant of leave to defend ought to be exercised. It has been further added that if the Court is of the opinion that the defendant is trying to prolong the litigation and impending speedy trial then the Court is justified to impose condition. In the same book in a case namely Chaudhry Automobile Auto Store and others v . United Bank Ltd. 1984 S C M R 749 a party was granted leave to defend the suit conditionally upon the depositing of the suit amount in cash. The said order was not complied with and the suit was decreed by the Court. It was held that the matter fell within the discretion of the Court and no illegality in the exercise of such discretion was committed by the Court in the circumstances. In similar cases reported as Hussain v. Rajab Ali 1981 C L C 1 and Crescent Factories Vegetables Ghee Mills and 5 others v National Bank of Pakistan District Courts Branch Sahiwal and another P L D 1985 Lah. 150 it was adjudicated that such an interlocutory order passed under Order XXXVII, Rule 3(2), C.P.C. was not amenable to appeal or revision and such condition, if imposed, was within the jurisdiction of the Court and the revision against the exercise of discretion in such matters was not competent. Again in Sh. Abdul Majeed v. United Bank Ltd. 1984 S C M R 1434, it was held that the imposition of condition that the petitioner should deposit suit amount before the next date of hearing, was within the discretion of the trial Court and no illegality was found in the exercise of such discretion and no case was made out for interference. In the said precedent leave to appeal was refused.

5. In a case where the execution of a cheque is not denied, the condition imposed for leave to defend by the learned trial Court is proper. I, therefore, see no merit in this revision petition and dismiss the same in limine. It may be noted that both the parties were heard at the limine stage. A . A . / K‑49 / L Revision dismissed.