'SYED QALB-I-HASSAN, J.--- Brief facts of the case are that the respondent filed a suit for recovery of Rs,93,00,000 as principal amount along with markup at the rate of 12 % under Order XXXVII of C.P.C.
Against the petitioner on the basis of cheque dated 7-8-2006 drawn on Muslim Commercial Bank, G.T. Road, Rawat, District Islamabad which was dishonoured on presentation due to payment stop by the petitioner.
2. The present petitioner entered appearance and submitted an application for leave to appear and defend the suit. The learned lower Court accepted the application vide order dated 7-12-2006 and allowed the petitioner to appear and defend the suit subject to furnishing of bank guarantee equivalent to the claim of the respondent i,e, Rs,93,00,000 to be furnished upto 23-12-2006. The instant revision petition has been filed to challenge the condition imposed in the impugned order dated IA 7-12-2006.
3. The learned counsel contended that the trial Court illegally imposed the condition of furnishing of bank guarantee with grant of leave to appear and defend the suit when the learned trial Court has clearly reached to an irresistible conclusion that substantial issues are involved in the suit which cannot be decided without recording of evidence and where the defendant succeeds in establishing bona fide and serious triable issues in the case, he should have been granted unconditional leave to defend the suit. Learned counsel for the petitioner further argued that he had agreed to pay sum of Rs,93,00,000 to the respondents in accordance with Jirga (agreement), entered into between the parties, which was to be encashment on fulfilment of the conditions mentioned in the said agreement. It was further alleged that as the condition mentioned in the agreement dated 23-6-2006 was not complied with by the respondent, therefore, respondent was not entitled to encashment of the said cheque. A copy of the agreement which is admitted by the parties has been placed on the file and according to the agreement the cheque in dispute was given to the respondent on the condition that he will deliver the possession of a "Kothi" house situated in the village Kortana, land measuring about 100 Kanals in possession of the petitioner will be demarcated and if the land is less than 100 Kanals, the petitioner will be entitled to get the price of the deficient land from 100 Kanals at the market rate from the respondent and if the land is in excess of 100 Kanals, the petitioner will hand over the excess land to the respondent. The learned counsel for the petitioner maintained that the above said conditions were not fulfilled, therefore, the cheque was without consideration and has created no obligation upon the petitioner to encash the same.
4. Learned counsel for the respondent vehemently controverted the contentions raised by petitioner and submitted that possession of the house mentioned in the agreement of Jirga was handed over to the petitioner and the same was leased out by him to one Malik Ibrar Rashid Halal son of Malik Muhammad Saif Ullah at the rate of Rs,10,000 per month and also received a sum of Rs,1,20,000 as advance rent from the tenant. Learned counsel for the respondent also placed affidavit/lease agreement on the file. Learned counsel for the respondent further maintained that before the above said Jirga/agreement, the parties entered into an agreement to sell for the sale of 100 Kanals of land and petitioner received about Rs,90,00,000 from the respondent. The said agreement was also placed on the record, with this background learned counsel for the respondent contended that the claim of the respondent in the suit was almost admitted by the appellant, therefore, in the circumstances of the case, no triable issue was before the Court so as to grant him leave unconditionally. With regard to imposition of the condition on the appellant to furnish bank guarantee. Learned counsel for the respondent contended that in the circumstances of the case imposition of condition to furnish bank guarantee was justified.
5. I have heard the learned counsel for the parties and perused the record.
6. After going through the pleadings and material placed before the Court, it appears that the petitioner received a sum of Rs,90,00,000 from the respondent as earnest money for the transfer of 100 Kanals of land and thereafter some dispute had arisen between the parties and consequently some agreement was entered between them through Jirga and the cheque in dispute was issued to the respondent on the condition that respondent will hand over the possession of the house, which was handed over to the petitioner and the petitioner further leased out the said house to the tenant. It is also admitted fact that possession of the land measuring 100 Kanals, subject matter of the agreement to sell is also in possession of the petitioner, which will be got demarcated by the parties to know whether the petitioner is in excess of the land or in some deficiency from 100 Kanals. Now the question for determination in present revision petition is that whether in the facts and circumstances of the case, the order for granting conditional leave was passed by learned trial Court in improper exercise of discretion. The grant of conditional or unconditional leave having direct nexus with plausibility of defence, the ultimate success or failure in the suit is not consideration for refusal or grant of leave, rather consideration is that the grounds taken in the application for grant of permission and defend the suit are plausible and defendant has arguable case. The principle of grant of conditional or unconditional leave to defend the suit was laid down by Honourable Supreme Court in Mian Rafique Segal and others v. Bank of Credit and Commerce International (Over Seas) Limited and others PLD 1996 SC 749, as follow:--- "Grant of conditional or unconditional leave is undoubtedly a matter within the discretion of the Court which is to be exercised keeping in view the facts and circumstances of each case. It is, however, neither possible nor advisable to lay down any hard and fast rule in this behalf. From a careful analysis of the provisions of Order XXXVII, Rule 3, C.P.C. And review of the case-law, it appears that when the facts disclosed by the defendant in the affidavit filed in support of his application for grant of leave to defend, are such that it becomes necessary for the plaintiff to prove consideration of the instrument, which is the basis of the suit, leave to defend may be granted unconditionally, provided the defence is found to be bana fide and the conduct of defendant is free from suspicion. Leave to defend may also be granted unconditionally, in the cases where the execution of the negotiable instrument is denied by the defendant and from the material before the Court it is not possible for it to record a positive finding in this regard at the stage of consideration of the application for grant of leave to defend, Similarly, where the claim in the suit on its face appears to be prima facie time-barred and there is no material before the Court to infer that the defendant has acknowledged his liability to pay the time barred debt, leave to defend may be granted unconditionally. These instances are, however, only illustrative and by no means exhaustive, as there may be other similar circumstances, which may persuade the Court to grant leave to defend unconditionally. However, where the defence disclosed by the defendant in his affidavit filed in support of application for grant of leave to defendant is found by the Court to be illusory, or lacking bona fide, or is intended to delay the proceedings or is based on allegation of vague and general nature relating to misrepresentation, fraud and coercion without any supporting material, leave may be granted on condition of either deposit of the amount claim in the suit or on furnishing of security for the same or on such other terms and conditions which the Court may think fit."
7. Now on the face of unrebutted assertion of the respondent and supported by the documents executed by the petitioner from time to time acknowledging his liability to the amount claimed against him. As already observed from admitted agreement between the parties that the petitioner has already received a sum of Rs,90,00,000 through an agreement to sell. When possession of the land is still with him along with the possession of house handed over to him through Jirga (agreement) which was also leased out by him and now on account of demarcation of land, which has not been done by the fault of either party, it can not be said that the conditions of Jirga (agreement) have not been fulfilled, therefore, the exercise of discretion by the learned trial Court in granting leave to appear and defend the suit on condition of furnishing bank guarantee did not suffer from any infirmity in the circumstances of the case.
8. As a result of the above discussion, I find no merits in this revision petition and the same is accordingly dismissed but no orders as to costs in the circumstances of the case.
' Before parting with this case, I would like to say that whatever is contained in this order has been stated with a view to disposing of this revision petition and it shall not, in any way, influence the final result of the case, which shall be decided by the entrusted Court strictly on merits in the light of evidence to be produced before it and according to law.