1. ' MRS. SYEDA TAHIRA SAFDAR, J.---The petitioner has filed instant petition seeking revision of orders made on 16-11-2006, 22-2-2007 and 8-5-2007 by Additional District Judge IV, Quetta. It is his contention that respondent/plaintiff has filed a suit for recovery of amount of Rs .80,00,000 allegedly outstanding against the appellant/defendant after settlement of account in respect of some partnership business, which comes to an end after settlement of the accounts. After institution of suit notice as provided under Order XXXVII, Rule 3, C.P.C. Was issued to him, whereupon he filed application seeking leave to defend the suit, thereby contesting the claim of respondent/plaintiff on merits and also raised objection in respect of jurisdiction of the court. But the trial Court after hearing the parties rejected the application in respect of jurisdiction through order made on 16-11-2006. Thereafter, the case was heard, while leave to defend the suit was granted to him through order made on 22-2-2007, but with condition to furnish surety to the tune of amount involved in the suit. The application made for reduction of . Surety amount was also rejected through order made on 8-5-2007.
2. ' Feeling aggrieved of these three orders the petitioner preferred present petition, while prayed for setting aside of the orders, further prayed that it be declared that the trial Court has no jurisdiction in the matter, thus the suit be also dismissed on grounds that the orders are illegal, improper and bad in eyes of law, facts are not appreciated properly.
3. ' Further no discretion vests in the court to grant leave conditionally or unconditionally, rather discretions to be exercised properly and judiciously. The court has misexercised its authority.
4. Furthermore, as the cheque in question was issued and delivered in Kalat, therefore, Courts at Quetta have no territorial jurisdiction in the matter, the trial Court has arrived at a wrong decision.
5. ' Parties through counsel are heard, while record is perused. The learned counsel for the petitioner has contended that a report was made about lost of the cheque which was produced by the respondent before the bank, which establish his contention. Further, the cheque was issued on 11-3- 2003, but the suit was filed after lapse of several year in 2006, which showed the mala fide intention of the respondent/plaintiff. Thus in view of the same suit was hit by Article 62 of Limitation Act.
6. Moreover, as the transaction was not held at Quetta, rather cheque was issued at Kalat and also delivered at Kalat, as such court at Quetta has no jurisdiction. In reply it is contended by the learned counsel for the respondent that present petition is filed beyond period of limitation which is 90 days, rather first order was made on 16-11-2006, while present revision petition is filed on 14-5- 2007, thus time barred, further no application is filed by the petitioner seeking condonation of delay. Furthermore, this court has no jurisdiction to exercise its revisional power in respect of orders made under Order XX XVII, Rule 3, C.P.C. Further, unconditional leave to defend the suit is not in conformity with the relevant provision of law.
7. ' The perusal of record reveals that the suit filed by the respondent/plaintiff was under Order XXXVII, Rule 2, C.P.C. For recovery of Rs.80,00,000 along with mark up and interest at prevailing bank rate, wherein the respondent/plaintiff asserted existence of partnership business between him and petitioner/defendant, while in 2003 settlement of accounts were made between them and it was found that an amount of Rs.80,00,000 was outstanding against the petitioner/defendant, as the partnership comes to an end thereafter, the petitioner/ defendant issued a cheque bearing No,26919267 dated 7-8-2003 pertaining to Muslim Commercial Bank, Kalat Branch to him, when he tried to encash the same, which was dishonoured with remarks "Non-availability of funds/amounts". The situation was brought into notice of petitioner/defendant who sought time, but thereafter, failed to make the payment despite repeated ' requests. Thereafter, coming into knowledge that the petitioner/ defendant used to defraud and cheat the people by getting the amount and his refusal for payment he make efforts for registration of a case against him, but due to influence of the petitioner/defendant case was not registered at relevant time by the police rather he (respondent) was involved in a false criminal case by the petitioner/defendant, which was tried by Judicial Magistrate-I, Quetta, but through judgment made on 1-8-2006 he was acquitted of the charge. It is further his contention that on direction of higher authorities F.I.R. Was lodged against the petitioner/defendant on 14-6-2006, the proceedings in same respect are pending. Meanwhile he filed present suit for recovery of the amount.
8. ' It is further apparent from record that on notice the petitioner/defendant filed an application seeking leave to defend the suit on grounds that the court has no territorial jurisdiction in the matter, while suit is filed beyond period of limitation, thus liable to be dismissed. While on merits he denied existence of partnership business between them, he further denied any settlement_of accounts. It is his contention that he had friendly terms with the respondent/plaintiff, who being in short of money requested for some loan from him, which was refused, on the same the respondent/plaintiff had stolen his cheque book with ledger registers, which were lying with the Munshi, duly signed for purpose of drawing amount to make payment to the employees/labourers.
9. As he was not in knowledge of lost or stole of cheque book he informed Tehsildar Sohrab about the same on 3-4-2003, whereby report was entered in Roz-Namcha. While on same date he also approached the Bank Authorities filed application, thereby informed them about lost of cheque and make request for stop of payment. Further, the respondent/plaintiff is involved in several criminal cases as he had committed forgery. While the criminal case filed against him by the respondent/plaintiff is pending before the court and not yet decided.
10. ' The learned trial Court on first instance decided the Abjection raised in respect of jurisdiction of the court through order made on 16-11-2006, whereby held that as the parties resided at Quetta, having their registered firms at Quetta, while the cheque in question though pertains to MCB Kalat Branch, but deposited at MCB Mechongy Road Branch Quetta. Assuming the jurisdiction rejected the application. Before touching the merits of this order, it is to be noted that the order was made on 16-11-2006, while present revision petition has been filed on 14-5-2007, while as per section 115 C.P.C. The provided period for filing a petition for revision of an order is 90 days. Surely present petition is filed beyond, provided period, to the extent of this order, thus not maintainable to this extent.
11. During course of arguments it is contended by the learned counsel for the respondent/plaintiff that present revision petition is not competent as this court has no jurisdiction to exercise its revisional jurisdiction in respect of order made under Order, XXXVII, Rule 3, C.P.C. Though the learned counsel raised this objection, but he has failed to elaborate his objection so raised. As per section 115 C.P.C.
12. This court may call for record of any case which has been decided by any court subordinate to it and in which no appeal lies. In present case the suit filed by the respondent/ plaintiff is not decided by the trial Court, rather interlocutory orders have been made during course of trial, which are questioned in present petition. As per section 115 C.P.C. This court can call for the record of the case which has been decided by any subordinate court in which no appeal lies. The term case decided not only includes decision of the suit finally decided, rather it can include any order made during pendency of the case being an interlocutory order, which decides any issue or point which effects the rights of the parties, in addition where no right of appeal is provided therein. In present case the impugned orders are made in respect of application/proceedings made under Order XXXVII, Rule 3(2), C.P.C. Section 104, C.P.C. And Order XLII, Rule 1, C.P.C. Specify the orders against which appeal lies. The perusal of the section and Rules reveals that orders made under Order XXXVII, Rule 3, C.P.C.
13. Are not included therein. Thus safely it can be presumed that the orders made thereunder are not appealable, thus the orders of such nature can be challenged/questioned before this court in its revisional jurisdiction. As such present revision petition is very much maintainable.
14. ' As far as order made on 22-2-2007 whereby leave to defend the suit is allowed to the petitioner/defendant with direction to furnish reliable surety for the amount involved i,e, Rs.80,00,000 is concerned, the petitioner/defendant was aggrieved only to the extent of the condition/direction for furnishing of surety. The record reveals that the petitioner/defendant filed an application seeking reduction of security and modification of the order to said extent. This application was disposed of through order made on 8-5-2007, whereby the trial Court declined to accept the prayer made by the petitioner/defendant. Both these orders are impugned in present petition.
15. ' The respondent/plaintiff filed suit for recovery of an amount of Rs.80, 00,000 with interest/mark up against the petitioner/defendant under provisions of Order XXXVII, Rule 3, C.P.C. Rule 3 of Order XXXVII, C.P.C. Speaks as under:-- "Defendants showing defence on merits to have leave to appear.---(1) The court shall, upon application by the defendant, give leave to appear and to defend the suit, upon affidavits which disclose such facts as would make it incumbent on the holder to prove consideration, or such other facts as the court may deem sufficient to support the application.
(2) Leave to defend may be unconditionally or subject to such terms as to payment into court, giving security, framing and recording issues or otherwise as the court thinks fit.
(3) The provisions of Section 5 of the Limitation Act, 1908 (IX of 1908) shall apply to applications under sub-rule (1)"
16. ' Thus as per Sub rule (2) of the Rule a discretion is given to the trial Court either to grant leave to defend unconditionally or subject to some terms. Giving security is one of the same. As such to this extent the trial Court has the power to call for deposit of security in the matter, there is no illegality to this extent in the impugned order. The only thing which is required to be seen that whether this discretion has been exercised judiciously or not by the concerned court. As per petitioner/defendant there is no justification under the law for imposing of the condition, further the court has misexercised its authority by granting leave conditionally. The petitioner/defendant is not specific in his contentions; he failed to point out any illegality or irregularity in the exercise of discretion by the trial Court. Rather the petitioner/plaintiff stressed more on merits of the case, whereon no findings can be given at this stage. He further failed to point out any illegality in order made on 8-5-2007. The trial Court has exercised-its discretion properly. It is apparent from documents placed on record that a dispute exists between the parties, while they are pursuing against each other on civil as well as on criminal side. In the circumstances the learned trial Court has made an appropriate order, which will not only safeguard the rights of the parties, but also works as blockage in multiplicity of litigation.
17. ' The petitioner/defendant has completely failed to make out any case in his favour. Therefore, the instant revision petition is dismissed being without merits.
18. No orders as to costs.