2007 PLP 1268 (CLC)

MUZAFFAR ALI, J.

This first appeal before this Court impugned order, dated 17-4-2006 passed by learned District Judge, Gilgit, whereby the learned District Judge has allowed the appellant to appear and defend the suit under Order XXXVII, C.P.C. against him, but with the precondition to deposit amount of Rs.52,

500. While arguing the appeal, it was pointed out that, the appeal against the impugned order is not competent under law and the version is conceded by the learned counsel for the appellant, but with the request to convert the same into revision. Since a crucial legal point is involved in the case which needs to be determined, therefore the request is granted and the appeal is treated as revision. The brief facts of the case are as such that, the respondent filed a suit under Order XXXVII, C.P.C. against the petitioner and the petitioner under law applied for grant of leave to appear and defend the suit. The learned District Judge imposed condition to deposit Rs.91,300 the outstanding amount and the matter of allowing leave to defend was adjourned till deposition of the above amount, hence this revision petition. I heard both the counsel for the parties, the learned counsel for the petitioner stressed the only point, that, the loan is secured by the mortgage deed dated 13-2-1999, therefore, the learned lower Court has exercised the discretion arbitrarily and without judicious consideration, he again stated that, since the loan is secured by the mortgage of immovable property having more value than that of the outstanding amount as such the impugned order is not tenable. The learned counsel for the petitioner referred 1988 MLD page 1310 (Lahore) in support of his above contention. The learned counsel for the respondent while confronting the above points frankly conceded that, the loan is secured through mortgage deed dated 13-2-1999, but stressed that, despite the fact, the learned lower Court has discretion to impose the condition and as such the impugned order is well within the discretionary power of the Court and demands no interference of this Court. I have gone through the above point and also have considered the case-law cited by the learned counsel for the petitioner. The relevant portion of the case-law, cited in 1988 MLD page 1310 is reproduced as under:

"

S. 7

Civil Procedure Code (V of 1908), O.XXXVII, R.2

Suit for recovery of loans

Leave to defend suit, grant of

Discretion of Trial Court to grant leave to defend suit subject to any condition has to be exercised by Court judicially keeping in view all the attending circumstances of case and not arbitrarily

Intention behind attachment of condition for granting leave to defend suit, is to secure payment of amount if suit ultimately would be decreed

Suit amount having already been secured through equitable mortgage of property, original documents of which had already been surrendered to plaintiff-Bank, there was held no need for further security for payment of suit amount." I am fully in consonance with the view taken by the Honourable D.B. of Lahore High Court. The Courts have to exercise their discretionary jurisdiction under Order XXXVII, rule 3 sub-rule (2) judicially, keeping in view all the attending circumstances of each case. The record available to me in the case in hand, shows that, the loan is secured by the mortgage deed dated 13-2-1999 and the value of the mortgaged property seems to be more than that of, the outstanding amount under question, furthermore no any other promissory note except, the mortgage deed dated 13-2-1999 has been placed in the record available to me, that shows, that the loan transaction between the parties is entirely based on the mortgage deed alone and if so, the learned trial Court is first to determine whether the suit comes within the ambit of Order XXXVII, C.P.C. or not. All the above circumstances of the case demanded me to interfere with the impugned order, I, therefore, set aside the impugned order and the petitioner/defendant is allowed to appear before the trial Court and defend the suit unconditionally. No order as to cost. S.A.K./15/Glt. Revision accepted.