' SYED QALIB-I-HASSAN, J.---Brief facts of the case are that the respondent filed a suit for recovery of Rs,27,50,000 under Order XXXVII of C.P.C. Against the petitioner. The present petitioner entered appearance and submitted an application for leave to appear and defend the suit along with the application for leave to appear another application under Order VII, Rule 10 of C.P.C. Was also filed whereby territorial jurisdiction of the learned lower Court was challenged. The learned lower Court accepted the application 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,27,50,000 to be furnished upto 27-9-2006 and directed the petitioner to submit Ole written battement.
2. Instant revision petition has been filed to challenge the impugned order. Learned counsel for the petitioner has although challenged the impugned order on various grounds, however, during the course of arguments the learned counsel for the petitioner has frankly conceded that in fact at this stage he has aggrieved against the conditions imposed by the learned Trial Court and confined his arguments with regard to imposing of condition. The learned counsel contended that the trial Court illegally imposed the condition of furnishing of bank guarantee with grant of leave to 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 unconditional grant of leave to defend the suit is a rule numerously endorsed by apex Court of Pakistan vide various judgments. He further states that the learned lower court in complete oblivion of judicial pronouncement imposed the most harsh condition in the circumstances of the case which amounts to decision of the case in favour of the respondent.
3. Learned counsel for the respondent contended that the learned lower Court in the light of facts of the case deemed it proper to grant to the petitioner conditional leave and in the given facts no exception can be taken to the use of discretion, normally the conditional grant of leave in a suit under Order XXXVII of C.P.C. Is not questionable if the order was passed in exercise of discretionary jurisdiction providing an opportunity of hearing to the defendant. The impugned order was passed after providing full opportunity of hearing to the petitioner. The principle for grant and refusal of leave to defend a suit was laid down by this Court in the case Fine Textile Mills Ltd., Karachi v. Haji Umar (PLD 1963 SC 163), as follows:-- "In a suit of this nature where the defendant discloses upon his affidavits facts which may constitute a plausible defence or even show that there is some substantial question of fact or law which needs to be tried or investigated into, then he is entitled to leave to defend. What is more is that even if the defence set up be vague or unsatisfactory or there be a doubt as to its genuineness, leave should not be refused altogether but the defendant should be put on terms either to furnish security or to deposit the amount claimed in Court.
' The principles upon which the provisions of Order XXXVII of the Code of Civil Procedure should be applied are not dissimilar to the principles which govern the exercise of the summary power of giving liberty to sign final judgment in a suit filed by a specially endorsed writ of summons under Order XIV of the Rules of the Supreme Court in England. One of such principles laid down by the Court of appeal in the case of Kodak v. Alpha Film Corporation (1930) 2 KB 340 was that at the stage when leave to defend is sought, the Judge is not to try the action; he is to see that there is bona fide allegation of a triable issue, which is not illusory; he need not be satisfied that the defence will succeed; it is enough that such a plausible defence is verified by affidavit."
4. The question for determination in this revision petition is that as to whether in the facts and circumstances of the case the order of grant of conditional leave subject to furnishing of bank guarantee equal to the claim of respondent i,e, Rs,27,50,000 passed by the learned trial Court was proper exercise of discretion. The governing factor to consider the question of grant of conditional or unconditional and terms of conditions imposed by the Court while granting leave to defend always depends on the grounds taken and material placed before the Court in support of the application for grant of permission to appear and defend the suit. In absence of plausible defence, the Court may not even grant conditional leave and may pass the decree in the suit in exercise of powers A under rule 2(2) read with rule 3 of Order XXXVII, C.P.C. If the Court in the light of pleadings of the parties, forms an opinion that the defendant has a good or plausible answer to the claim of the plaintiff, it may grant unconditional leave.
5. Now the respondent filed a suit for recovery of Rs,27,50,000 and averred that the parties entered into an agreement for establishment of a petrol pump/C.N.G. Filling station at Shahrah-e-Faisal, Karachi claimed to have been leased to the present petitioner by Pakistan Air Force on 4-6-2003.
The present petitioner also entered into an agreement for establishment of another petrol pump/C.N.G. Filling station at Dalmia Road, Karachi with the son of the respondent which was established but the present petitioner never paid any profit to his son and consequently the said agreement was cancelled vide written agreements, dated 13-8-2004 and 1-9-2004. The present petitioner paid the invested amount to the son of respondent through post-dated cheques which were initially dishonoured but later on the son of the respondent received the same, however, the agreement entered by the respondent and present petitioner for establishment of the petrol pump/C.N.G. Filling station was not matured as Pakistan Air Force authorities did not lease site of the petrol pump to the present petitioner, therefore, the present petitioner promised that he would repay his investment for establishment of petrol pump and out of the said amount the cheque in dispute was issued which was dishonoured and the suit was filed against the present petitioner.
The present petitioner entered appearance in the learned lower Court and submitted an application for leave to appear and defend the suit on the grounds that the cheque was issued by the petitioner at Karachi, the bank for which the cheque was issued was also situated in Karachi.
The said cheque was marked "payment stop" by the Standard Bank in Karachi, therefore, for all practical purposes the cause of action, if any, has arisen within the territorial jurisdiction of Civil Court at Karachi and no cause of action or friction thereof was accrued to the respondent within territorial jurisdiction of Court at Islamabad, therefore, the trial Court has no jurisdiction in the suit.
The petitioner has also filed a suit against the respondent and his son in the High Court of Sindh at Karachi. The petitioner has also annexed certified copies of the suit filed in the High Court of Sindh at Karachi. The learned counsel during the arguments has reiterated the grounds taken by him in the suit filed at Karachi and accepted that the parties have entered into agreements for establishment of petrol pumps/C.N.G. Filling stations and when the establishments of petrol punips/C.N.G. Filling stations were at its full swing, the respondent requested the plaintiff to buy out his partnership share or find another investor to replace him through letter, dated 24-4-2004 and thereafter started pressurizing the petitioner to pay back his investment, consequently the petitioner was summoned by AOC, southern Air Command, Main Stadium Road, Karachi in the presence of Group Captain Shahid Malik and Col. Rahat and was coerced to issue cheques and sign the agreements of their own terms under duress and coercion.
6. After perusal of the pleadings and material placed before the Court along with the application for grant of leave to defend and in view of the law laid down by the Hon'ble Supreme Court, the petitioner has raised a plausible defence or even has shown that there is some substantial question of law or fact which needs to be tried or investigated, therefore, the learned trial Court was not justified in imposing condition of furnishing a bank guarantee as term for grant of leave to defend the suit. As such, keeping in view the defence raised in the application for grant of leave to defend and material placed before the Court as well as the law laid down by the Hon'ble Supreme Court in the case of Fine Textile Mills Ltd. (Supra) and in Abdul Rauf Ghauri v. Mrs. Kishwar Sultana and 4 others (1995 SCM R 925), I accept this revision petition, set aside the order of the learned lower Court to the extent it has imposed the condition of bank guarantee as term for defending the suit by petitioner. The impugned order is amended to the extent that the leave to defend will be deemed to have been granted to the petitioner on the condition of furnishing of any solvent security to the satisfaction of the learned trial Court. The security will be furnished by the petitioner within one month from today. In the circumstances of the case, there will be no order as to costs.
' Revision partly accepted.