IJAZ-UL-AHSAN, J. --- The petitioners challenge order dated 12.9.2009 passed by the learned Additional District Judge, Jhang, whereby the petitioners were granted leave to defend the suit subject to submission of surety bond in the sum of Rs. 50,00,000/-. The application for review of the aforesaid order was dismissed on 18.11.2009 by the same learned Court.
2. Petitioners Nos. 1 to 3 are minors, while petitioner No. 4 is their real mother. She has no adverse interest against the minors and is acting as their next friend. The petitioners are legal heirs of Pervez Nawaz, who ran a business of supply of fertilizers in District Jhang. While petitioner No. 4 was in England visiting her parent and the children were with their father in Jhang. Pervez Nawaz suddenly died on 28.2.2008. It is alleged that the respondent, who is the real brother of the deceased alongwith his other brother namely Sh. Muhammad Zafar took over all assets of the deceased including account books, cheque books stock and trade etc. The respondent allegedly forged the signatures of the deceased Pervez Nawaz on a cheque and filed a suit under Order XXXVII, C.P.C. Against petitioners Nos. 1 to 3 through his brother Sh. Muhammad Zafar, as proposed guardian ad litum. The institution of the suit was allegedly kept secret from petitioner No. 4.
3. Sh. Muhammad Zafar allegedly submitted an application for leave to appear and defend the suit on behalf of the minors. He did not disclose presence of petitioner No. 4 in Pakistan despite knowledge of the fact that she was in Pakistan. She was not served in consequence of which a proclamation was published in daily "The News", Lahore on 28.6.2009 requiring the petitioner to appear in Court on 27.6.2009. Petitioner No. 4 on acquiring knowledge of pendency of the suit filed an application for leave to appear and defend the suit. The application was contested by the respondent. Vide order dated 12.9.2009, the application moved by petitioner No. 4 was allowed subject to furnishing of surety bond in the sum of Rs. 5,000,000/-. Aggrieved of the said order, a review petition was filed, which was also dismissed on 18.11.2009. But the said orders impugned herein.
4. The learned counsel for the petitioners submits that the defence taken by petitioner No. 4 in her application for leave to defend the suit entitled her to unconditional leave to defend the suit. He submits that none of the petitioners was duly served in the prescribed manner. The citation in the newspaper for service of respondent No. 4 was contrary to Form IV, Appendix-B of C.P.C., in consequence, which the suit stood converted into an ordinary suit. He further points out that the predecessor-in-interest of the petitioners left behind the assets which have illegally been taken over by the respondent. He, therefore, argues that in the peculiar facts and circumstances of the case imposing a condition to furnish a surety bond in the sum of Rs. 5,000,000/- would practically non-suit the petitioners, cause hardship and result in miscarriage of justice.
5. The learned counsel for the respondent on the other hand submits that the, respondents are admittedly British Citizens and are likely to leave the country. It is, therefore, imperative that they be, directed to submit surety bond in order to safeguard the interests of the respondent.
6. I have hard the learned counsel for the parties and have gone through the record. The facts narrated in the plaint are sketchy and would require recording of evidence in order to substantiate the claim made in the suit. The manner in which attempts were made to 'non-suit petitioner No. 4, makes it all the more important that the suit should be decided on merits rather than technicalities. There is nothing on record that may indicate that the predecessor-in-interest of the petitioners and the respondent had any business dealings. The cheque was admittedly post-dated and the predecessor-in-interest of the petitioners died before its presentation. It is also noticed that the petitioners have specifically denied the signatures of the deceased and have alleged that in the absence of petitioner No. 4, the respondent and the other brothers have taken over all the assets as well as the business of the predecessor-in-interest of the petitioner.
7. In case of Pakistan Water and Power Development Authority (WAPDA) v. Messrs Sea Gold Traders and 2 others (2003 CLD 392), it was held that "where there arose triable issues for adjudication leave normally is granted unconditionally and where defence is patently dishonest or unreasonable, when it could not reasonably expected to succeed, the leave can be granted conditionally. The issue for the grant or not to grant leave, and whether to grant or not to grant conditional leave can be summarized in the light of decisions of various Courts right from Fine Textile Mills case reported in PLD 1969 SC 263 as under:--- Leave to defend in a suit instituted under Order XXXVII, Civil Procedure Code shall be granted by Court where the facts disclosed by the defendant on affidavit make out a case of shifting of onus on plaintiff.
(ii) Leave may also be granted on any ground or fact which the Court considers sufficient to support the application for grant of leave.
(iii) Refusal to grant leave is a rare phenomena confined to cases where no defence at all is disclosed by the defendant.
(iv) No hard and fast rule can be laid down for grant of conditional or unconditional leave.
(v) Where facts disclosed in the affidavit are such that it becomes necessary for the plaintiff to prove consideration of the instrument leave to defend may be granted unconditionally.
(vi) Leave can be granted unconditionally where execution of negotiable instrument is denied and from material on record it is not possible for Court to record a positive finding at the stage of consideration of application.
(vii) Where claim in suit on its face appears to be prima facie time-barred, unconditional leave can be granted.
(viii) There -can be other circumstances in which unconditional leave can be granted.
(ix) Where defence disclosed found by the Court illusory or lacking bona fides. Leave can be granted conditionally.
(x) Where defence in the application are vague or intended to delay the proceedings without supporting material about. The allegation . Of fraud, coercion, leave can be granted conditionally.
(xi) What should be terms and conditions for the grant of leave is at the discretion of the Court to be exercised keeping in view facts and circumstances of each case.
8. The facts narrated in the application for leave to defend and other attending circumstances show that the signatures on the cheque have specifically been denied. The question of consideration for alleged issuance of cheque is to be determined after recording of evidence. The defence in the application is neither vague nor illusory and a number of questions are raised which appear to be bona fide and raise triable defence. In Mian Rafique Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. And another (PLD 1996 SC 749), the apex Court held that "when the facts disclosed by the defendant in the affidavit filed in support of his application for grant of leave to defend, and 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 bona fide and the conduct of the defendant is free from suspicion. Leave to defend may also be granted unconditionally, in 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."
9. It is also noticed that it is the mandatory requirement of law that summons be issued in Form IV, Appendix-B, C.P.C. There is nothing on record to indicate that the mandatory requirement of law was followed and in any case the citation which appeared in "The News" was not in the. Format prescribed by law. In Mst. Bilqees Fatima v. Abdul Razzaq (PLD 1986 Karachi 444) it was held that "Mode of summons prescribed by Order XXXVII, Rule 2, C.P.C. Is mandatory. -Unless summons is in the prescribed form the question of seeking leave to appear and defend does not arise.
10. From the perusal of the record, I find that a bona fide defence has been raised in the application. The summons were not served on petitioner No. 4 in accordance with the requirements of Order XXXVII, C.P.C., signatures on the negotiable instruments were specifically denied, nothing has been placed on record to indicate that the cheque in question was issued for consideration. Further the executant of the cheque has passed away and the circumstances in which the cheque was issued, presented and subsequently the suit was filed, require further probe, recording of evidence and application of mind by the learned subordinate Courts. In these circumstances calling upon the petitioners to furnish security bond as a condition for grant of leave to appear and defend the suit is harsh, would cause hardship and may result in the petitioners being non-suited on a technicality, despite the fact that they may have a good defence.
11. In lmtiaz Ahmad v. Ghulam A.I, etc. (PLD 1963 SC 382), the Hon'ble Supreme Court of Pakistan held "Proper place of procedure in any system of administration of justice is to help and not thwart the grant to the people of their rights. All technicalities have to be avoided unless it is essential to comply with them on grounds of public policy. Any system which by giving effect to the form and not the substance defeats substantive rights is defective to that extent Ideal must always be a system that gives to every person, what is his." The above principle was re-affirmed by the apex Court in Mahmood All Butt v. Inspector General of Police, Punjab, Lahore and 10 others (PLD 1997 SC 823).
12. For reasons recorded above, this petition is allowed. The application for leave to appear and defend the suit filed by the petitioner is accepted unconditionally and the impugned order to the extent that the petitioners have been directed to submit surety bond in the sum of Rs. 5,000,000/-is set aside. The learned Trial Court shall now proceed to decide the case on merits in accordance with law. .