' MIAN SAQIB NISAR, J.---The respondent brought a suit for the recovery of an amount of Rs,7,00,000 against the appellant under the provision of Order XXXVII, rule (2), C.P.C. , basing its claim on a cheque issued by the appellant, which was not encashed, the appellant applied for the leave to appear and defend the suit which was declined vide order dated 27-5-2000 followed by the impugned judgment and decree. Hence this appeal.
2. Mr. Aftab Gul, counsel for the appellant submits, that the defence set out by the appellant in his leave application warranted the resolution of the dispute between the parties, by framing of the issues and recording of the evidence. It is stated that the defence set out was neither illusionary nor without a substance, therefore, without conceding, it is argued that even if the defence was weak or vague, yet the Court should have granted leave to appellant, may be subject to certain condition. In this behalf, he has placed reliance upon a judgment reported as Fine Textile Mills Karachi v. Haji Umar (PLD 1963 SC 163). When questioned by the Court, if the appellant is prepared to deposit the suit amount as a condition for the grant of relief, he submits that after passing of the impugned decree, the suit amount has already been deposited by the appellant, which is lying with the executing Court.
3. The learned counsel for the respondent while meeting the law laid down in the said judgment has submitted that defence set up by the appellant in his leave application is most improbable, rather no defence in the eyes of law. It is also argued that leave application was drawn by the appellant in the form of a written statement, in which no specific grounds upon which the leave was sought have been elucidated. Lastly, he argued that according to law, the leave application should be supported by an affidavit, which means a full affidavit, whereas the short affidavit filed along with the so-called leave application, is not acceptable in law and it also does not bear the signature at one of the places where the deponent was supposed to sign. About the defective affidavit, he has placed reliance upon Bashir Ahmad v. Abdul Wahid (PLD 1995 Lahore 98).
4. We have heard the learned counsel for the parties. From the contents of the leave application particularly grounds C & D the appellant has set out the defence, that because of the arrest of the respondent's father by the NAB, he needed some money, therefore, he offered his house for sale to the appellant, and the appellant gave him the disputed cheque as a part of the consideration.
However, the sale could not finalize as the respondent as not able to produce the documents of tick and he also retained the said cheque and with object has brought the suit. This defence may be weak in nature, but it cannot be said, to be vague and illusionary. And without recording of the requisite evidence this factual issue raised cannot he adjudged, therefore, on the touchstone of the decision of the Supreme Court the appellant was entitled to a conditional leave.
3. For the argument of the respondent side that the leave application does not conform to the form of the application of such a nature. Suffice it to say that according to law, no specific form has been prescribed; it is the substance of the application and not the form which really matters, and even if parawise reply to the plaint having been given in the application but also specifically stating the ground on which the appellant seeks the leave, the said application could not be declined as lacking in qualifying ingredients to be a leave application. As regards the affidavit, it has been filed in support of the application which is the requirement of the law, may be shorter in form. But it embodies the requisites of an affidavit which has been duly attested by an Oath Commissioner. The only deficiency that it is not in an elaborate form, does not render the same ineffective. Resultantly, the objection is also repelled.
4. In the light of the above, the appeal is accepted, the judgment and decree of the trial Court dated 9-7-2002 and the order dated 27-5-2002 are set aside. The appellant is allowed conditional leave to appear and defend the suit, and the amount already deposited by him with the executing Court shall be in pursuance of the condition for the leave. The parties are directed to appear before the trial Court on 15-1-2005, and the Court shall proceed to decide the case within six months of the above date.