1986 PLP 2547 (CLC)

(c) Out of Rs.11,00,000 given as loan by Nooruddin Bhajiwala, Rs.6,00,000 have been paid back by the defendants to Nooruddin Bhajiwala. (d) The loan which had been granted by Noorpddin Bhajiwala is secured by the cinema building and equipment of the defendants."

2. It was urged before the learned Single Judge by the learned counsel for the appellant that the suit was based on promissory note and the respondents had admitted the signature thereon and the attempt to make out a case that the loan was given by Nooruddin Bhajiwala had no legs to stand on. It was further emphasised by the learned counsel for, the appellant that no action had been taken by the respondents against Nooruddin Bhajiwala and against the appellant for cancellation of the promissory note and that even notice had not been given by the respondents to Nooruddin Bhajiwala. It was further submitted that where the execution of promissory note was admitted, if at all leave to defend the suit was to be granted to the respondents it should be conditional leave and the respondents be directed to furnish security for the amount of the promissory note.

3. The learned Single Judge on the aforesaid submission observed that the case had been made out for the grant of leave to defend the suit. He however, observed that the question for consideration which engaged his attention was whether the leave should be granted to the respondents conditionally or unconditionally. Dealing with this question the learned Single Judge observed as follows:‑ "No doubt, the signatures on the promissory notes are admitted by the defendants, yet in my view, a plausible defence has "''been made out in the applications for leave to defend and tire affidavits of the defendants in support thereof. According to the defendants, the person who had advanced the loans is one Nooruddin Bhajiwala. It is averred that Habibullah plaintiff in Suit Nos. 17, 18, 48, 49, 106 and 107 of 1984 has no locus standi to file these suits. It is further averred on behalf of the defendants that the plaintiffs in Suits Nos. 485, 486, 487, 498, 489 and 490 of 1984 are the real sisters of Nooruddin Bhajiwala, who is a well‑known professional money‑lender of Karachi. In the counter‑affidavits of the attorney of the plaintiffs in these 6 suits, the averment that they are the sisters of Nooruddin Bhajiwala, has not been denied. The Defendants have also taken the stand that they do not know the plaintiffs in all these 12 suits and that they had not even met them. Except for a bare general denial, in the counter‑affidavits on behalf of the plaintiffs, no specific reply has been given to this averment. Nowhere is their relationship with the defendants, that is, whether they are relatives or friends or acquaintances or there was some other relationship on the basis of which such huge amounts were advanced by the plaintiffs to the defendants. It has also been noticed that in none of the promissory notes in these suits "``~'t" there is any mention about the interest. All the promissory notes are without interest. Prima facie it does not appeal to reason that for advancing such huge amounts by the plaintiffs to the defendants, who are apparently strangers, there was no agreement for payment of any interest or any other consideration. case of any defendants that it is not the plaintiffs but some body else with whom the defendants have privity of contract does not prima facie, appear to be without substance."

4. We have heard Mr. Syed Inayat All learned counsel for the appellant. Mr. Syed Inayat Ali submitted that the learned Single Judge should have granted leave to defend the suit conditionally on furnishing security. It is however, not disputed that the learned Single Judge had discretion ire the matter to grant leave conditionally or unconditionally and that it was not a case in which leave to defend the suit could have been refused. Even otherwise in view of the rule laid down by the Supreme Court in the case of Fine Textile Mills Ltd., Karachi v . Haji Umar P L D 1963 S C 163 such a ground could not have been urged for triable issues were raised. Now, it is again settled that where the trial Court has exercised discretion the Appellate Court will not interfere with it unless it is based on irrelevant or extraneous consideration or it is exercised arbitrarily or perversely. In Eckhardt & Company Marine GMBH, West Germany and another v. Muhammad Hanif H. C . A. No. 61 of 1983, one of us namely, the Chief Justice had occasion to deal with this question and this is what he observed in this regard: "

9. The first point for consideration is this appeal is whether the learned Single Judge has exercised his discretion in refusing to stay the proceedings on relevant consideration for it is not questionable that under section 34 of the Arbitration Act, 1940, he has discretion to stay or not to stay the proceedings and it is settled that an Appellate Court will not substitute its own discretion for that of the Trial Judge except where the discretion is exercised arbitrarily or perversely. Rehmatunnisa Begum and others v. Price and others A I R 1917 P C 116, or where the discretion is exercised contrary to the legal principle s.s. Miranda Ltd. v. The Chief Commissioner, Karachi and another P L D 1959 $ C (Pak. )

134. Reference to the following cases on the point will also not be out of place: (1) The Printers (Mysore) Private.Ltd. v. Pothan Joseph A I R 1960 S C 1156, (2) Union of India v. Messrs Hind Galvanizing and Engineering Co. Pvt. Ltd. A I R 1973 Cal. 215, and (3) Hanuman Chamber of Commerce Ltd., Delhi v . Jassa Ram Hira Nand A I R 1948 Lah. 64."

5. We are, therefore, of the opinion, that no case has been made out for interference with the exercise of discretion by the learnedly Single Judge.

6. Since the suit is based on promissory note in accordance with Rule 22 of the Original Side Rules of this Court it has to be treated and tried as a short cause which course should be followed in this case and which would in our opinion meet the ends of justice. We, therefore, dismiss this appeal in limine. H.B.T. Appeal dismissed.