1. ' MRS. QAISER IQBAL, J.---The appellant has assailed the judgment dated 5-4-2008 and decree dated 12-4-2008 passed by the learned Vth Additional District. & Sessions Judge, Karachi East in Civil Suit No,42 of 2007 against the Appellant for recovery of Rupees Thirty Lacs. Being aggrieved, the Appellant has preferred this Appeal.
2. ' Succinctly the facts of the case are that the respondent No,1 had filed a summary suit for recovery for recovery of Rs,30 Lac through its employee/Manager HR & CEO Zubair Ahmed. The Respondent No,1 averred in the plaint that the Appellant was posted in the Company as a Senior Accountant and during posting he had committed embezzlement of Rupees Thirty Two Lacs when this fact came to the knowledge during the internal audit, the Appellant was informed about this misappropriation, he executed an undertaking dated 19-5-2007 and 22-5-2007, issued four cheques for Rs,34,21,000, out of which one cheque of Rs,4,21,000 was encashed, remaining cheques were dishonoured. The Respondent No,1 initiated criminal and civil proceedings against the Appellant, F.I.R. No,438/2007 was lodged under section 408, P.P.C. At Police Station Ferozabad, Karachi. The Appellant lodged F.I.R. No,440/2007 under section 384, P.P.C.
3. ' After service of summons, the appellant appeared, filed an application for grant of unconditional leave, case was transferred to the learned Vth Additional District & Sessions Judge, Karachi East and leave application wa granted subject to furnishing bank guarantee of Rs,10,00,000 on 19-3- 2008, and the case was fixed on 5-4-2008, the Appellant filed an application under Order VII, Rule 11, C.P.C., the learned trial Court proceeded to pass the impugned judgment and decree.
4. ' I have heard the learned counsel for the Appellant, perused the record of the case.
5. It is admitted fact that after leave was granted upon furnishing security on 19-3-2008, the Appellant filed an application fox extension of period to deposit the amount. It was obligatory on the learned trial Court to decide the application of the Appellant for extension of time to deposit the surety but his request was not acceded to. Thus impugned judgment and decree was passed without application of mind, which is not in consonance with, taw, as laid down by the Hon'ble Supreme Court of Pakistan in the case of Mollah Eiahar All v. Government of East Pakistan (PLD 1970 SC 173), M/s Airport Support Services v. The Airport Manager, Quaid-eAzam International Airport, Karachi (1998 SCM R 2268) and Zain Yar Khan v. The Chief Engineer, C.R.B.C WAPDA, DI Khan (1998 SCM R 2419).
6. ' On perusal of the record, it transpires that the application for leave to defend was granted by the learned trial court for furnishing surety equivalent to the suit amount, an application for extension of time was moved, which was also declined. The Appellant was directed to furnish security in a sum of Rs,10,00,000 as bank guarantee within 15 days vide order dated 19-3-2008, which could not be complied with by the Appellant.
7. ' Undisputedly, the Appellant was posted in the Respondent-Company as Senior Accountant and purported to have embezzled a substantial sum, which was revealed during the internal audit upon which cheques were issued by the Appellant, one cheque was encashed and remaining cheques were dishonoured. It is also noticed that the averments in the plaint are general with regard to payment of consideration, no details have been provided. Even in reply to the leave application such explanations are found missing, therefore, for the purpose of adjudication of dispute between the parties in normal course, evidence of both the parties ought to have been recorded. The allegations in the plaint read in juxtaposition to defence position in leave to defend application, does not inspire confidence, as such learned trial court has not come to the just conclusion for fair adjudication of the case the parties were required to adduce evidence to prove their respective contention, as defence taken by the Appellant in the eye of trial was not illusory. The condition for furnishing security is based upon the pendency of counter F.I.Rs,, a triable issue has been raised which requires scrutiny at trial, which in may humble opinion, cannot be treated as sufficient ground available under the law for imposition of condition of furnishing bank guarantee. The condition of imposition of bank guarantee was taken into consideration by the Hon'ble Supreme Court of Pakistan in the case of Abdul Rauf Ghauri v. Mrs. Kishwar Sultana and 4 others (1995 SCM R 925), the condition of furnishing bank guarantee was set aside substituted by any solvent security.
8. ' For the foregoing facts and circumstances, salient features inevitably make out a case of interference and invalidation of impugned order, therefore, impugned judgment is hereby set aside. The Petitioner is directed to furnish security to the satisfaction of the learned trial Court within two months, consequent thereof case shall be proceeded in accordance with the procedure provided under the Code of Civil Procedure. The parties are left to bear on costs in the circumstances of the case.