ALI BAQAR NAJAFI, J. - This civil revision is directed against order dated 24.11.2011 rendered by the learned Additional District Judge, Gujjar Khan, whereby he accepted the application of the petitioner under Order 37, Rule 3, CPC for leave to appear and defend the suit subject to the condition of furnishing bank guarantee equal to the amount of disputed cheque i.e. Rs. 25,00,000/- in a suit filed by the respondent under Order XXXVII, Rules 1 and 2, CPC for the recovery of Rs.
25,00,000/- on the basis of negotiable instrument i. e. Cheque No. 869718, dated 26.7.2008.
2. Learned counsel for the petitioner submits that the petitioner has made out a plausible defence as execution of cheque has been denied; the cheque was presented on 30.7.2008 but the proceedings of issuance of cheque initiated on 13.8,2011 against Article 64-A of Qanun-e-Shahadat Order, 1984; that no other supportive documents were relied upon except the cheque; that the cheque in question was without consideration; that two F.I.Rs. Already stood registered which show the mala i.e on the part of the respondent. He relies on Muhammad Ali Nawaz and 3 others Vs. Sh.
Muhammad Aslam (PLD 2010 Lahore 219); Mian Rafique Saigol and another Vs. Bank of Credit and Commerce International (Overseas) Ltd. And another (PLD 1996 Supreme Court 749); Abdul Rauf Ghauri Vs. Mrs. Kishwar Sultana and 4 others (1995 SCMR 925); Salah-ud-Din and others Vs. Messrs Avon Shoes Co. (1990 ALD 606); Muhammad Faruq and others Vs. Abbvas Lakadwala and others (2003 CLC 1879) to agree that in such-like situation bank guarantee is too harsh.
3. On the other hand, learned counsel for the respondent has vehemently opposed the petition by submitting that under Section 115, CPC revisional jurisdiction does not permit setting aside the impugned order that all the legal documents required to decide civil revision were not placed on record; that the suit was filed within a period of three years; that there is bald allegation regarding the stolen cheque book and issuing of the cheque. He relies on Muhammad Anwar Vs. Hoechst Pharmaceutical Pakistan (Pvt.) Ltd. And others (1989 MLD 171); Fine Textile Mills Ltd., Karachi Vs. Haji Umar (PLD 1963 Supreme Court 163); Muhammad Tariq Siddiqui Vs. Nasir Ali and another (2011 CLC 191); Tahir Hassan Choudhery Vs. Shahid Ahmed Khan (2006 CLC 640); Messrs National Security Insurance Company Limited and others Vs. Messrs Hoechst Pakistan Limited and others (1992 SCMR 718), Zubair Ahmad and another Vs. Shahid Mirza and 2 others (2004 SCMR 1747) and Talib Hussain Vs. Abdul Shakoor (2012 CLC 69) to argue that the plausible defence has to be weighed on the basis of grounds taken and the materia) available and as such even the leave should not have been granted at all, hence condition of bank guarantee is perfectly in accordance with law. t
4. I have heard the learned counsel for the parties and perused the record.
5. It is not the case of the respondent that the petitioner should not have been allowed leave to appear and defend the suit at all as he has not challenged the ing order. Controversy raised before this Court is whether the condition of bank guarantee is to be imposed to the facts and circumstances of the case.
6. Leave to defend may be granted un-conditionally (i) when defence is found to be bona i.e and the conduct of the defendant is free from suspicion; (ii) negotiable instrument is denied by the defendant on the basis of material on record; (iii) possibility of positive findings can be given at the ing stage on the question of time based debt. However, if Court finds the defence is illusory, lacking bona i.e or intended to delay proceedings or is based on allegation of vague and general nature relating to mis-representation, fraud and coercion without any documentary material, the leave to defend should not be granted either conditionally or unconditionally; (a) either deposit of the amount claimed in the suit or (b) on furnishing of security for the same or (c) or any other terms and conditions. One way to secure a possible decree in the suit may be in the form of a solvent security to the satisfaction of the Court in the matter of claim in the suit as already held by the Hon'ble Supreme Court of Pakistan in Abdul Rauf Ghauri Vs. Mrs. Khsiwar Sultana and 4 others (1995 SCMR925).
7. Apart from that if the parties agree the plaintiff can always be secured through some arrangement. In this view of the matter, this civil revision is partially allowed and impugned order dated 14.11.2011 is modified to the extent that the application filed by the petitioner seeking leave to appear and contest the suit is allowed subject to furnishing of solvent security to the satisfaction of the learned Trial Court.