MIAN HAMID FAROOQ, J.---The petitioner/defendant, through the present revision petition, has called in question order, dated 23-9-2005, whereby the learned Additional District Judge accepted petitioner's application for leave to appear and defend the suit, subject to furnishing bank guarantee for the sum of Rs.2,32,000.
2. The respondent/plaintiff filed the suit for recovery of Rs.2,32,000, against the petitioner, before the learned District Judge, under the summary procedure provided under Order XXVII, C.P.C. On the basis of Cheque No.25697641, dated 30-6-2002, amounting to Rs.2,32,000, which was subsequently, bounced when presented for encashment. The petitioner was served in accordance with law and he filed the application seeking leave to appear and defend the suit, inter alia, pleading that the Court lacks territorial jurisdiction. Blank cheque was obtained by the respondent/plaintiff and four other persons, under coercion and duress, the son of the respondent was admitted in the college and he got the education for first and second professional and the fee received by the petitioner was consumed. The learned trial Court, after hearing the parties on the leave application, allowed the petitioner to defend the suit, however, subject to furnishing bank guarantee for the sum of Rs.2,50,000, vide impugned order, dated 23-9-2005, hence the present petition.
3. Learned counsel for the petitioner states that the consideration of the said cheque was not proved, the same was obtained blank and that too under coercion and duress, therefore, the imposition of condition for furnishing the bank guarantee is illegal and deserves to be recalled. He has relied upon Mian Rafique Saigal and another v. Bank of Credit and Commerce International (Overseas) Ltd. And another PLD 1996 SC 749. Conversely the learned counsel for the respondent, while refuting the said contention and referring to the photo copy of the cheque (at page 29 of the file) states that cross cheque was issued by the petitioner, which is sufficient to show that the same was issued voluntarily, otherwise the petitioner would have insisted for issuance of bearer cheque.
He has added that the cheque was delivered on 30-6-2002 and since then the petitioner neither filed, any suit for cancellation of the cheque nor got registered any case against the plaintiff.
4. I have heard the learned counsel and examined the available record. The only questions involve in the present petition are as to whether the petitioner was entitled for the unconditional leave to appear and defend the suit and as to whether the impugned order is sustainable in law. The said legal question was examined by the Division Bench of this Court in a case reported as Zubair Ahmad and another v. Shahid Mirza and 2 others 2004 M LD 1010, which principles of law are completely applicable in the case in hand. It would be appropriate to reproduce a portion of the judgment, which clinches the matter and is apt to the facts and circumstances of the present case.
"As is evident from para. 2 of the memorandum of appeal that the appellants are really aggrieved by order dated 18-2-2003. To our mind, the pivotal questions, around which the entire controversy revolves, are as to whether under the facts and circumstances of the case, as highlighted through filing the plaint, application for leave to appear and defend the suit coupled with the documents produced by the parties, the appellants are entitled for the unconditional leave to appear and defend the suit, as canvassed by the learned counsel for the appellants, and as to whether order dated 18-2-2003, whereby the conditional leave was granted to the appellants, is sustainable under the law. For this one has to revert to the provisions of Order XXXVII, rule 3(2), C.P.C., which provides that "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". It flows from the bare perusal of the afore-enoted provision of law that discretion has been conferred upon a Court to grant leave to defend the suit, either unconditionally or subject to such terms as to payment into Court or giving security. Hi this case, the learned trial Court, while considering the pleadings of the parties, came to the conclusion that the appellants are entitled for the grant of leave to defend the suit, but subject to condition of furnishing bank guarantee, in exercise of powers under the afore-enoted provision of law. It has nowhere been laid down under Order XXXVII, C.P.C., that when a case is made out, a defendant must be granted unconditional leave to defend the suit rather this matter has been left to the discretion of the Court. In this case, the learned trial Court, in exercise of its discretionary powers, has tagged the condition of submitting batik security with leave to appear and defend the suit. The attachment of said condition cannot be termed, under any stretch of imagination, as illegal, without jurisdiction or even arbitrary and harsh. We are of the view that if the appellants would not have been able to make out a case for the grant of leave to defend the suit, then obviously, their application was liable to be dismissed and the question of grant of leave could not have arisen. The learned trial Court under the circumstances has rightly conic to the conclusion that the appellants are entitled for the grant of leave, but the same would be subject to furnishing of bank security for the suit amount. The learned trial court after coming to the conclusion that "the defendant has raised substantial question of law and facts in the case. To my mind, these facts can be ascertained after recording the evidence" granted conditional leave to appear and defend the suit. This approach of the learned trial Court shows that it was conscious of the fact that although the appellants are entitled for the grant of leave, yet lagging up of condition of bank guarantee would be in the interest of justice. In a case reported as Mian Rafique Saigol and 'another v. Bank of Credit and Commerce International (Overseas) Ltd. And another PLD 1996 SC 749, it was held that "exercise of discretion by Court granting leave to defend to a defendant, condition of furnishing of bank guarantee was not open to any exception by the Supreme Court in circumstances."
It is settled law that the leave to defend may be granted conditionally or unconditionally in the discretion of the Court. If any case-law is needed, the judgments reported as Mian Rafique Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. And another PLD 1996 SC 749, Niaz Ahmad and 2 others v. Habib Bank Ltd. And others 1991 SCM R 75 and Messrs Ark Industrial Management Ltd. v. Messrs Habib Bank Limited PLD 1991 SC 976 can be referred. We feel that the learned trial Court, while tagging up the condition of depositing of bank security with the leave granting order, has exercised its discretion in accordance with the recognized principles, governing the exercise of discretion and the same has not been exercised illegally, arbitrary or in a fanciful manner, thus, we are not inclined to interfere in the discretion exercised by the learned trial Court. It has been held in Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139 that the discretionary orders of subordinate Courts cannot be interfered with, unless found fanciful and arbitrary."
5. There is another aspect of the case. The learned trial Court, after passing the impugned order, adjourned the case to 7-10-2005 for submission of bank guarantee, however, on that date, the learned counsel for the petitioner sought an adjournment for filing the bank guarantee and the written statement. Thereupon the learned trial Court adjourned the case to 14-10-2005. It flows therefrom that the petitioner acquiesced over the impugned order and requested the Court for enlargement of time for furnishing bank guarantee. The principle of estoppel operates very harshly against the petitioner. Had the petitioner been really aggrieved by the said order, he should not have requested the learned trial Court for further opportunity to file the bank guarantee. The petitioner cannot be allowed to blow hot and cold in the same breath.
6. As the petitioner failed to furnish the requisite bank guarantee, therefore, the learned trial Court, on 28-10-2005, closed petitioner's right to appear and defend the suit. The petitioner filed an application (C.M. No.3 of 2005) in the present revision petition, thereby challenging order, dated 28- 10-2005, however, the said application was dismissed on 7-11-2005. On a query raised by this Court, the learned counsel has showed his ignorance as to whether order, dated 28-10-2005 and 7-11- 2005 have further been challenged by the petitioner or not.
7. As regards the case of Muhammad Rafique Saigal (ibid), relied upon by the learned counsel for the petitioner, there cannot possibly be any cavil to the principles of law declared by the Honourable Supreme Court of Pakistan, however, the said judgment does not in any way advance the case of the petitioner, rather the same has been relied upon by the Division Bench of this Court.
8. Upshot of the above discussion is that the present revision petition is devoid of merits, hence stands dismissed.
No order as to costs.