' This civil revision assails judgment/order, dated 24-5-2003 passed by Additional District Judge, Sialkot, directing the petitioners to deposit bank guarantee for an amount of Rs,20,00,000, the amount claimed in the plaint by the respondent, as security for grant of leave to defend the suit.
2. A short factual background of the case is that respondent filed a suit for recovery of Rs,20,00,000 on the basis of a cheque issued by the petitioners on 5-1-1998 under Order XXXVII, rules 1 and 2, C.P.C. Originally, this suit was filed before the learned Additional District Judge, Lahore, who vide his order, dated 20-2-2003 returned the plaint under Order VII, rule 10, C.P.C. For its presentation before the Court having jurisdiction in the matter as he concluded that Courts at Lahore have no territorial jurisdiction to try the same. Respondent after receiving back the plaint refilled it on 6-3-2003 before the learned Additional District Judge, Sialkot, where the petitioners being defendants filed an application seeking leave to appear and defend the suit.
3. Respondent-plaintiff pleaded in his plaint that the petitioners issued three cheques for a consideration of Rs,34,00,000 of different dates out of which two cheques for Rs,4,00,000 and Rs,10,00,000 respectively, were honoured by the bank and were encashed, whereas the third disputed Cheque bearing No,22252826, dated 5-1-1998 for an amount of Rs,20,00,000 was dishonoured and was returned by the bank with the remarks "referred to the drawer" on 10-1-1998.
The amount of all the three cheques was claimed by the respondent-plaintiff to be payable by the petitioners in connection with some business dealing inter parties.
4. Petitioners in their application seeking leave to appear and defend the suit, denied the assertions of the respondent-plaintiff and claimed that suit by him is barred by limitation. It is also claimed in this application that wife of the respondent is real sister of the petitioners, who owned land measuring 2-1/2 acres, which was in the control of the respondent as general attorney. Petitioners claim that on account of some oral agreement to sell regarding aforementioned land they issued two cheques including the cheque in dispute, as earnest money. Petitioners claimed that payment of the disputed cheque was stopped by them because respondent failed to Perform his part of contract. Petitioners though admitted execution/issuance of cheques, but denied receipt of consideration thereunder and the learned trial Court finding that the dispute could not be settled without trial and recording of evidence, granted the petitioners leave to appear and defend the suit subject to deposit of bank guarantee equivalent to the cheque amount within 15 days. Petitioners aggrieved of furnishing of bank guarantee have challenged the order of the learned trial Court, dated 24-5-2003 only to this extent through the instant revision petition.
5. Leaned counsel for the petitioner submits that condition of furnishing bank guarantee equivalent to the cheque amount is very harsh and according to him, amounts to refusal to grant leave to defend because no bank guarantee will be furnished by the bank without deposit of equivalent cash. He further submits the suit of the respondent is barred by limitation and he himself has filed an application under section 14 of the Limitation Act, 1908 Tor condonation of delay and without first determining the question of limitation requirement of furnishing bank guarantee is not warranted. He also adds that simple security or surety for due performance of the decree if ultimately passed in the suit, would serve the intents/purposes of the provisions of Order XXXVII, C.P.C. And non-adherence of the trial Court to its this jurisdiction has prejudiced his case. In support of his stance, he referred to Abdul Karim Jaffarani v. United Bank Ltd. And 2 others 1984 SCM R 568 and Asif Khurshid v. Saeed Ahmad 2000 CLC 913.
6. Learned counsel appearing on behalf of the respondent refuted the submissions of the petitioners and besides supporting the order of the trial Court, dated 24-5-2003, submitted that the petitioners could not comply with the orders of the trial Court requiring them to furnish bank guarantee whereafter they moved an application to the trial Court for extension of time and they were allowed 15 days for doing the needful. This act of the petitioners, according to him, amounts to acceptance of the order, whereafter, he submits that petitioner should not be permitted to challenge the order accepted by them. He further contends that since there was no order by this Court staying proceedings before the trial Court, it has already framed issues arising out of the pleadings of the parties which include issues of limitation and on merits of the case and now the trial Court has required the respondent to produce his evidence and since the trial of the cast has started, order, dated 24-5-2003 should not be disturbed. Learned counsel for the respondent further elaborates his arguments by saying that discretion of attaching condition to the Order granting leave to appear and defend the suit, vests in the trial Court, which was rightly and lawfully exercised by it and such an order cannot be interfered by this Court. In this behalf, he relied on Fine Textile Mills Ltd., Karachi v. Haji Umar PLD 1963 SC 163. He further contends that where execution of a promissory note is admitted and consideration is also not denied, discretion entirely vests in the trial Court for grant of leave conditionally or unconditionally. In this behalf he relied on the cases of Messrs Khalid Rifat Transport Company and 2 others v. Commerce Bank Ltd., Karachi 1973 SCM R 587, Khalid Javed & Company v. Javed Oil Industries 1988 CLC 53, Muhammad Anwar v. Hoechst Pharmaceutical Pakistan (Pvt.) Ltd. And others 1989 M LD 171 and Irshad Ahmed v. Tahir Saeed 1997 M LD 409.
7. I have considered the respective contentions of the learned counsel for the parties and have examined the record. Petitioners have not denied issuance of cheque in question besides which they have admitted issuance/execution of two earlier cheques, which were encashed in favour of the respondent. Whether these cheques were issued and delivered by the petitioner in lieu of some earnest money under the claimed agreement to sell, is yet to be determined by the trial Court, after recording of evidence and at the time of conclusion of the trial. For the purpose of controversy in hand, it is enough that authenticity of cheques, is not disputed. Undeniably, discretion regarding grant of leave to appear and defend the suit under the provisions of Order XXXVII, rules 1 and 2, C.P.C. Entirely vests in the trial Court who is to exercise it judiciously. In view of admission of execution of cheque, this discretion has rightly been exercised by the trial Court in accordance with the settled principles, in this behalf. All the cases relied by the learned counsel for the respondent besides the case of Messrs Khalid Rifat Transport Company (supra) revolve around the proposition that such a discretion vests with the trial Court. In latter mentioned case, the honourable Supreme Court in its alighted judgment has mandated that after admission of execution of document on the basis of which suit is filed, it is the prerogative of the trial Court to attach any condition to the leave granting order or not. Besides the case-law above referred, section 118 of the Negotiable Instruments Act, 1881, envisages that onus to prove non-payment of consideration is on the executant and it follows therefrom that it is not incumbent upon the holder of pronote to prove payment of consideration, at leave granting stage. I accordingly hold that since the trial Court has exercised its discretion and authority within the parameters fixed by law, no interference in revisional jurisdiction of this Court is called for and that too, after findings by the trial Court that dispute between the parties can only be settled by trial of, the suit and recording of evidence, revision against such proper exercise, is not competent.
8. Submission of the learned counsel for the petitioners that suit is barred by time and thus no condition could be imposed to the leave granting order, in the circumstances of this case, has no substance because the trial Court has already proceeded with the trial of the suit and admittedly one of the issues framed, relates to limitation and thus, at this stage any finding would prejudice the case of the parties. Petitioners in their application for leave to defend or in the memorandum of revision before this Court have not pleaded that on account of suit being beyond limitation. 'no condition, like the one in hand, could be imposed by the trial Court. Petitioner after order by the trial Court, dated 24-5-2003 themselves moved for extension of time, which was granted to them.
Language of application filed by the petitioners before the trial. Court, mandates that they have not disputed the condition attached by it and rather admitted it by seeking extension therein. Be as it may, discretion/ jurisdiction vesting in the trial Court having been lawfully exercised and not having been shown to have been exercised arbitrarily or fancifully, no interference in this petition is called for.
9. Since I am not inclined to set aside the condition attached by the trial Court and petitioners have been following this matter before this Court, I feel it appropriate to grant them some time to furnish the bank guarantee, as required by the trial Court through the impugned order. I, accordingly, in the interest of justice, allow one month's time from today, to the petitioners, to do the needful under the order, dated 24-5-2003 of the trial Court. This revision petition having no merit in it is dismissed, with no order as to costs.