Conditional leave

2023 CLC 1684 KARACHI-HIGH-COURT-SINDH Judicial Precedent

O.XXXVII, R. 2Suit for recovery of moneyLeave to defend suit, grant ofDishonored chequesConditional leavePrincipleAppellant/defendant was not granted leave to defend the suit and suit was decreed in favour of respondent/plaintiffValidity

Defence set up by appellant/defendant was neither fake nor without any material to support or just bald allegations without any substance

At worst, even if appellant's/defendant's defence was treated as vague or unsatisfactory or there was a doubt as to its genuineness or it appeared to be very weak or a sham one, then leave to defend should have been granted conditionally putting him on terms to either furnish security or deposit the amount claimed by respondent / plaintiff in summary suit

Factual premise on which Judge in Chambers of High Court predicated his judgment was fallacious on account of misreading and non-reading of pleadings and/or documentary record

Plausible defence was made out by appellant / defendant and triable issues had been raised which required determination by Trial Court

Facts narrated and documents produced in summary suit by appellant / defendant showed that there was a substantive dispute which merited deeper enquiry and required grant of leave so that the relevant material could come on the record through process of evidence

Granting of leave to defend application did not mean that respondent / plaintiff was being non-suited

Non-granting of leave to defend application was fatal for appellant / defendant who would be left with no recourse to establish its case

Division Bench of High Court set aside judgment and decree passed by Judge in Chambers of High Court, granted conditional leave to defend the suit and remanded the matter for trial in accordance with law

Appeal was allowed accordingly.

2022 CLD 872 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 9, 10 & 22Recovery of financeRelationship of financial institution and customerConditional leaveFurnishing Bank guaranteePrinciple

Appellant/defendant was granted conditional leave to appear and defend the suit subject to deposit of Bank guarantee in excess of amount claimed by plaintiff Bank

Appellant/defendant failed to deposit Bank guarantee and suit was decreed in favour of Bank

Validity

Appellant/defendant denied relationship of financial institution and customer between parties

Such was a substantial question that required evidence

Banking Court was not justified in imposing condition of furnishing Bank guarantee for amount exceeding that claimed in suit

Discretion exercised by Banking Court was improper and such condition was harsh

Appellant/defendant had already mortgaged his agricultural land with respondent/plaintiff as security

Judgment and decree in question was passed only as a consequence of non-fulfillment of harsh condition

At the time of grant of leave to defend the suit, imposition of condition was discretion of Court but such discretion was to be exercised judiciously according to facts and circumstances of case and condition, if any, should not be harsh

High Court set aside judgment and decree passed against appellant/defendant and remanded the matter to Banking Court for trial afresh

Appeal was allowed, in circumstances.

2012 CLD 2016 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 9 & 10Bankers' Books Evidence Act (XVIII of 1891), S.4Suit for recovery of bank loanConditional leaveNon-compliance of conditionCertified statement of accounts

Defendants failed to comply with condition imposed while granting leave to defend the suit on the plea that suit was not maintainable

Validity

No rebuttal of statement of accounts was on the record and as such the suit was maintainable

Certified statement of accounts under S.4 of Bankers' Books Evidence Act, 1891, was the core document under S.9 of Financial Institutions (Recovery of Finances) Ordinance, 2001

Statement of account was available on record and no entry of the same was challenged and as such it was presumed that account prepared and maintained by bank were correct

Statement of account having certificate under S.4 of Bankers' Books Evidence Act, 1891, was admissible per se specially when there was no opposition and there was no objection against any debit entry

In absence of any rebuttal, amount due as per statement of account would be deemed to be the correct liability of defendants

Suit was decreed accordingly.

2012 YLR 2464 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

O.XXXVII, Rr.1, ,2 & 3Suit for recovery of moneyConditional leaveCondition, non fulfilment ofStriking of defence

Defendants were allowed leave to appeal and defend the suit subject to furnishing surety bond equivalent to amount claimed in plaint to the satisfaction of Trial Court

Defendants furnished surety bond equivalent to a portion of total amount claimed in suit and Trial Court directed them to make up deficiency in surety bond submitted

Order granting leave subject to furnishing of surety bond was not further assailed by defendants and it attained finality

Defendants were under obligation to fulfill condition under which they were granted leave to appear and defend the suit

Defendants also sought further time to do the needful to the satisfaction of Trial Court and matter was kept pending for that purpose in spite of extensions granted by Trial Court

Defendants could not do the needful and earlier order passed by Trial Court holding surety bond submitted to be insufficient to the satisfaction of Trial Court was not interfered by High Court in earlier revision petition

Effect

Defendants were themselves responsible for not fulfilling condition on which leave was granted to them to appear and defend the suit

High Court in exercise of revisional jurisdiction did not find any illegality in order passed by Trial Court

Revision was dismissed in circumstances.