MIAN HAMID FAROOQ, J.---Present revision petition is directed against order dated 13-12-2000, whereby the learned Additional District Judge accepted petitioner's application for leave to appear and defend the suit subject to deposit of the bank guarantee, equal to the claimed amount.
2. The respondents/plaintiffs filed the suit for recovery of Rs.2,38,000 against the petitioner/defendant, before the learned District Judge, under the summary procedure provided under Order XXXVII, C.P.C. On the basis of some bank drafts. The petitioner filed the application seeking leave to appear and defend the suit, which was resisted by the respondents, however, ultimately the learned Additional District Judge accepted petitioner's application and directed him to submit bank guarantee equal to the suit amount, vide impugned order dated 13-12-2000,hence the present revision petition.
3. Learned counsel states that the learned trial Court failed to consider that respondents suit under Order XXXVII, C.P.C. Was incompetent and, therefore, the petitioner was entitled for unconditional leave to appear and defend the suit.
4. I have heard the learned counsel and examined the available record. As noted above, the petitioner filed the application seeking leave to appear and defend the suit, which was allowed, however, subject to his furnishing bank guarantees equal to the suit amount. The petitioner is only aggrieved with a portion of the order, whereby he was directed to furnish the bank guarantee of the suit amount as his case is that under the circumstances he is entitled for unconditional leave to appear and defend the suit. Thus, the only question in the present case is as to whether the petitioner, under the present set of circumstances, is entitled to unconditional leave to appear and defend the suit and imposition of the condition of bank guarantees should be waived. The said question was raised and decided by the Division Bench of this Court in a case reported as Zubair Ahmal and another v. Shahid Mirza and 2 others (2004 M LD 1010). It appears appropriate to reproduce Paras Nos.7 and 8 of the said judgment, which clinch the matter and also answer to the contention raised by the learned counsel and read as under:- "(7) 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,wherby 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 un-conditionally or subject to such terms as to payment into Court, giving security, framing and recording issues or otherwise as the Court thinks fit." If flows from the bare perusal of the aforenoted provision of law that discretion has been conferred upon a Court to grant leave to defend the suit, either un-conditionally or subject to such terms as to payment into Court or giving security. In 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 aforenoted 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 un-conditional 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 bank 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 came 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 tagging 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 no 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 Commence International (Overseas) Ltd. And another (PLD 1996 SC 749), Niaz Ahmad and 2 others v. Habibi Bank Ltd. And others (1991) SCMR 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 Bag v. Sultan Mahmood Khan and another (PLD 1970 SC139) that the discretionary orders of subordinate Courts cannot be interfered with unless found fanciful and arbitrary.
' In the above perspective we are constrained to hold that order dated 18-2-2003, whereby the appellants were granted leave to defend the suit subject to furnishing bank security, is not open to exception and was properly and legally passed thus, the said order is hereby maintained."
5. In the above perspective, I have examined the impugned order and find that the learned Additional District Judge did not commit any illegality in passing the same and discretion exercised by the learned trial Court is perfectly justified and is not open to exception. The impugned order is maintained.
6. For the foregoing reasons the revision petition is devoid of merits, hence stands dismissed in limine.