P L D 2019 Peshawar 141 (PLP)

SYED MUHAMMAD ATTIQUE SHAH, J.--This revision petition by Naseem Khan, petitioner, is directed against the order dated 22.02.2018 of the learned Additional District Judge-IV, Abbottabad in Suit No.8/1 of 2015, under Order XXXVII, C.P.C., whereby, the learned trial Court while allowing leave to defend to the petitioner directed him to furnish surety bond in the sum of disputed amount with two sureties.

2. In essence, the grievance of the petitioner in the present revision petition relates to dirction of the learned trial Court qua grant of conditional leave to defend the suit filed by respondent for recovery of one crore along with 18% profit per annum.

3. The respondent was summoned, however, who failed to appear before the Court despite his personal service, as such, he was proceeded against ex parte vide office Note dated 08.10.2018.

4. Arguments of learned counsel for the petitioner heard and record perused.

5. Perusal of record would reveal that respondent has instituted a suit for recovery of Rupees one Crore against the petitioner under Order XXXVII, C.P.C. The petitioner appeared before the learned trial Court and applied for 1eave to defend the suit, which was contested by the respondent by filing reply thereto. However, conditional leave was granted to the petitioner by the learned trial Court and he was directed to furnish surety bond in the disputed sum. 6 Before discussing the question of grant of leave to defend, involved in the present case, this Court would like to remind that the purpose of special and separate procedure provided under O.XXXVII, C.P.C. is to ensure speedy and timely disposal of financial matters, which can be brought before a Court empowered under the law on the basis of 'Bill of Exchange', 'Promissory Note', Hundi', and Cheque' etc. and leave to appear and defend the suit has been made a condition precedent with an obvious object to curb the delaying tactics of a delinquent defendant, who has no plausible defence or a triable issue, and also to minimize the agonies of a plaintiff. The procedure to file application for leave to appear and defend the suit is provided in Order XXXVII, Rule 3 C.P.C., which reads as under: '3. (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." The Court under the rule ibid has the discretion to grant leave to defend conditionally or unconditionally which depends upon the facts and circumstances of each case. The very purpose of the rule ibid is to empower the Court to strike a balance between two situations i.e. where triable issues are raised/disclosed by the defendant, then unconditional leave to defend is to be granted or where defence is taken by the defendant with the sole object to gain time, then Court might insist upon some condition. By now it is also well established that grant of leave is not a matter of course or of right, rather the defendant has to show/disclose a plausible defence, which may give rise to a triable issue and if he succeeds then leave to defend is to be granted unconditionally; plausible defence which gives rise to triable issue must be cogent, fair, bona fide, reasonable and disclosed upon an affidavit. Apart from the above, Court at the time of determining the factum of plausible defence, has to consider substantial question of law, jurisdiction of Court, complex question of limitation, instrument not properly stamped or not attested by two witnesses or the same is issued without consideration or element of fraud requiring inquiry. However, if plausible defence is not made out, then leave may be refused and suit be decreed. It is worth mentioning that in proceedings under Order XXXVII, C.P.C, the conduct of the defendant is very much relevant in granting or refusing leave to appear and defend the suit.

8. From the available record of the case, when this Court examines the defence of petitioner in the instant case, it transpires that there was certain business transaction between the parties regarding development of road and plots, which was thoroughly discussed by the learned trial Court in the impugned order and on merits leave to appear and defend the suit was granted subject to furnishing surety bond. However, this Court is of the considered view that once the defence putforth by the petitioner on affidavit was considered and leave was granted on merits, then leave should have been granted without any condition in view of the peculiar facts and circumsnces of the instant case.

9. In view of the foregoing discussion, this revision petition is accepted, the impugned order of the learned trial Court is modified to the extent that petitioner is entitled for grant of unconditional leave to defend the suit. SA/33/P Petition accepte