MIAN SAQIB NISAR, J.---The respondent brought a suit for the recovery of Rs.6, 50,000 against the petitioner, under the provisions of Order XXXVII, C.P.C., on the basis of a pro note. The petitioner moved an application for leave to appear and defund in which, he took up the plea that the pro note has not been executed by him and it is a forged and fabricated document. The learned trial Court, after hearing the learned counsel for the parties, came to the conclusion that though the petitioner has denied the execution of the pro note and the receipt, however, it prima facie appears that the pro note etc. Bear his signatures and thumb impressions. The trial Court, therefore, concluded that the denial of the petitioner is contumacious and granted him conditional leave to appear and defend subject to the furnishing of the bank guarantee or depositing the defence saving certificates in the sum of the suit amount.
2. Learned counsel for the petitioner, by relying upon the judgments reported as Mian Rafique Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. And another (PLD 1996 SC 749), and Abdul Rauf Ghauri v. Mrs. Kishwar Sultana and 4 others (1995 SCM R 925) states that directing the petitioner to furnish the bank guarantee or deposit the defence saving certificates, tantarnounts to refusal of leave, and is a very harsh and inappropriate order in the light of the judgment reported as Fine Textile Mills Ltd. v. Haji Umar (PLD 1963 SC 163).
3. Contrarily, the learned counsel for the respondent has argued that the impugned order is legal and proper; the simple denial of the petitioner about the execution of the pro note, was/is a contumacious denial, and because the petitioner had failed to offer a plausible defence as to why would the plaintiff/ respondent prepare a forged pro note/receipt, resultantly the condition was rightly imposed by the learned trial Court; by further relying upon, Prof. (R) Dr. Muhammad Jamil Bhutta v. Abdullah Farooq (2006 CLC 982), it is submitted by the learned counsel for the respondent that the order imposing a condition upon the defendant while granting him the leave is a discretionary order and should not be interfered in the revisional jurisdiction.
4. Heard. The learned trial Court in paragraph No.4 of the impugned order has held:-- "Though the defendant has put forth an absolute denial to the execution of alleged pro note and receipt of consideration, however it prima facie appears that alleged pro note and the receipt in this regard bear signatures and thumb-impressions of the defendant Legally, initial presumption arises under section 118 of Negotiable Instruments Act, 1881 that the instrument is made, drawn, accepted or endorsed for consideration. This presumption is althoughrebutable, yet onus lies on the person denying such document or consideration. Furthermore, defendant has not brought on record any specific reason for what the alleged instrument has been prepared forgedly and fictitiously particularly against him by the " plaintiff when he has neither any relationship nor any terms with the plaintiff. In the given situation, denial of the defendant appears to be contumacious."
I fail to understand that if the petitioner, to whom the alleged execution of the pro note has been imputed, has out-rightly denied the execution of the document, how could the Court, without enabling the parties to prove/disprove the execution, form a prima facie opinion that the pro note and the receipt bear the signature and thumb impressions of the defendant. Therefore, in such circumstances, to hold that the defence of the petitioner is contumacious, tantamounts to prejudging the issue at the stage of leave. Besides, under the provisions of section 118 of the Negotiable Instruments Act, 1908, the presumption attached to the negotiable instrument, until contrary is proved, is inter alia about the "consideration", however, under the said section, there is no presumption that a negotiable instrument, if denied, still should be presumed to have been executed by the defendant as alleged by the plaintiff. Resultantly, the learned trial Court has fallen in error in relying upon the said section. The third reason of the Court, that it is for the petitioner to specify the reason as to why the pro note was forged and fictitious, is fallacious and perfunctory.
The Court in fact at the leave stage wants the petitioner to prove a negative fact, the onus of which should, in view of the pleadings of the case, be upon the plaintiff; moreover, how can a defendant state about the state of mind of the plaintiff, as to why the plaintiff has prepared a forged document.
5. In view of the Fine Textile Mills's case (PLD 1963 SC 163) and also Mian Rafique Saigol's case (PLD 1996 SC 749), the defendant was entitled to the grant of leave if some substantial question of law and facts, needs to be investigated, was raised. The main question involved in this matter is, whether the pro note has been executed by the petitioner or not. Undoubtedly, this is a quite fundamental question of fact to be resolved by the Court. In such circumstances, it cannot be held that the defence set out by the petitioner was vague, unsatisfactory or was ingenuine. Had the petitioner admitted the execution and set out a defence, which ,was not plausible, obviously in that situation, the Court could have imposed the condition of the deposit of the amount etc. But in the light of the facts and circumstances of the case in hand, the condition of the deposit etc. Is harsh and in fact tantamounts to negate the principle of law enunciated in the aforesaid precedents. In my view, the ends of justice shall meet if the petitioner is directed to furnish the solvent security qua the suit amount to the satisfaction of the Court. Therefore, the order imposing the condition of deposit etc. Is untenable.
6. The argument of the respondent's counsel that the leave granting order imposing the condition should not be interfered in the revisional jurisdiction, suffice it to say that this Court has the supervisory jurisdiction over the subordinate Courts and if the order passed by the Court is not tenable under the law, is perverse or perfunctory, or as in the present case the Court has failed to apply and follow the correct law laid down by the Honourable Supreme Court of Pakistan, such error can be held to be an error in the exercise of jurisdiction, and thus, interfered in revision. In the light of above, by allowing this petition, the impugned order to the extent of the imposition of condition is set aside with the direction to the petitioner to furnish the solvent security to the tune of the suit amount, to the satisfaction of the trial Court within a period of one month from today. If the security is not so furnished, this petition shall be deemed to have been dismissed.