1. ' AFTAB AHMED GORAR, J.- Through this 1st Appeal filed under section 96, C.P.C., the appellant has challenged the judgment dated 1-9-2010 passed by learned Vlth Additional District Judge, Karachi East whereby, he dismissed application under section 151, C.P.C. For exemption to furnish bank guarantee in respect of leave to defend the summary suit filed by respondent No,1 and simultaneously decreed the suit as prayed.
2. ' Precisely the facts of the case as disclosed in the memo of appeal, are that the appellant was doing business of chemical which was used in manufacturing of G.R.P. And since 2005 the respondent was supplying the abovesaid chemical to the appellant. Mode of payment was cash as well as through cheques. Consequent upon dispute having been cropped up between the parties. Respondent No,1 filed a summary suit against the appellant for recovery of Rs,22,40,000/-.
3. The appellant filed application for leave to defend to which objections were filed by the respondent. After several hearings the application was ultimately decided vide order dated 22-4- 2010 whereby the appellant was granted conditional leave to defend the suit by furnishing bank guarantee. The appellant challenged the said order by filing application under section 151, C.P.C.
4. Praying therein to exempt him to furnish bank guarantee but the same was rejected vide impugned judgment and simultaneously suit was decreed, as prayed, hence this appeal.
5. ' I have heard learned counsel for the parties who have also filed written arguments and perused the material available on the record.
6. ' Learned counsel for the appellant contended that the appellant/ defendant had made out plausible defence for grant of leave to defend unconditionally, as it is yet to be decided whether in fact the appellant has to pay any amount to the respondent. He also submitted that even the suit itself, as framed, was not maintainable. According to him, learned trial Court while passing the impugned judgment has not applied its mind judicially and ignored the settled principles of law and the precedents set forth by the superior courts. He relied upon judgment of honourable Supreme Court passed in the case of Abdul Rauf Ghauri reported in 1995 SCM R 925, so also unreported order of this court passed in 1st Appeal No,11 of 2008.
7. ' On the other hand, learned counsel for respondent No,1 supported the impugned judgment and decree contending that the respondent having been satisfied with the issuance of open cheques by the appellant, had supplied the chemical to him but on presentation of the cheques, the same were dishonoured, as such the order of granting conditional leave to defend to the appellant was absolutely in accordance with law. He further submitted that the appellant having failed to comply with the order of furnishing bank guarantee, the trial Court rightly dismissed the application for exemption and decreed the suit of the respondent. He relied upon the decisions reported in 1973 SCM R 100, 1992 CLC 2161 and 2001 YLR 930.
8. It is now settled principle of law that in such types of cases if the defendant in his application for leave to defend has succeeded to show a plausible defence or even is able to establish that there is some substantial question of fact or law which needs to be tried or investigated into, then he is entitled to the grant of leave to defend. However, if it seems that the defence set up by the defendant is vague or unsatisfactory or there be doubt as to its genuineness even in such a case leave should not be refused but certain conditions could be imposed either to furnish security or to deposit the amount claimed by the plaintiff. What the court trying a summary suit is required to see, is that there is bona fide allegation of a triable issue, which is not illusory; the court need not be satisfied that the defence will succeed, it is enough that such a plausible defence is verified by affidavit. If any authority is needed reference could be made to PLD 1963 SC 163 and 1995 SCM R 925.
9. ' Examining the instant case in the light of above said principle of law enunciated by the apex court, it is to be seen as to whether the appellant in his application for leave to defend had raised plausible defence on oath so as to entitle him unconditional leave to defend. The appellant in his application for leave to defend stated that it was a mutual verbal agreement between the parties that the appellant defendant will market the chemical and the respondent/plaintiff will supply the same at credit. For such purpose the appellant gave 8 cheques of Rs,5,00,000/- each making a total of Rs,40,00,000/- as security. The appellant thereafter received complaint about the chemical supplied by the respondent which was formally discussed with the respondent. Thereafter the appellant received series of complaints against the chemical supplied by the respondent. On contact, the respondent admitted their fault and stated that some outdated chemical was supplied which will be got returned and the first sale was returned on 22-1-2007. Thereafter the respondent stopped supplying the chemical on lame excuses by tendering apologies that since the customs department has stopped the respondent's import due to some legal complication, therefore such delay is occurring. However, on the promise of the respondent that the supply of the chemical will be commenced in the month of February, 2007, the appellant submitted 27 post- dated cheques worth Rs,30,40,000/- but due to ulterior motives the respondent miserably failed to fulfil their commitment, rather they tried to encash the security cheques and upon dishonour of the said cheques, he lodged F.I.Rs, against the appellant.
10. In view of above, for the purpose of adjudication of disputes between the parties in normal course, evidence of both the parties ought to have been recorded. The learned trial court for arriving at a just and proper conclusion should have allowed both the parties to adduce evidence in order to prove their respective contentions, as defence taken by the appellant was not illusory. It seems that the condition of furnishing bank guarantee is based upon the pendency of criminal cases against the appellant, although a triable issue has been raised by the appellant which requires scrutiny at trial and I am of the view of that it was not sufficient ground for imposition of condition of furnishing bank guarantee.
11. Keeping in view the defence raised in the application for grant of leave to defend the suit and the dictum laid down by the honourable Supreme Court in the above-cited decisions, I allow the appeal set aside the impugned judgment and remand the case back to the trial court with the modification in the impugned judgment that leave to defend the suit will be deemed to have been granted to the appellant on the condition of furnishing any solvent security to the satisfaction of the trial Court within four weeks from the date of this order consequent thereof the case shall be proceeded in accordance with the procedure provided under the Code of Civil Procedure. There will be no order as to costs.