' M. SOHAIL IQBAL BHATTI, J. --- This appeal is directed against the order and decree dated 25.3.2004 passed by learned Additional District Judge, Multan.
2. Brief facts giving rise to the filing of this appeal are that the respondent filed a suit for recovery of Rs, 25,00,000/- on the basis of promissory note dated 22.4.2002. The appellant appeared before the learned Trial Court and filed an application for leave to defend the suit.
3. In his application for leave to defend the suit the appellant denied the very factum of receiving of any consideration in lieu of the promissory note and alleged that the promissory note dated 22.4.2002 has been obtained by fraud. The learned Trial Court vide order dated 8.3.2004, upon agreement of parties, accepted the application for leave to defend the suit subject to furnishing surety in the amount equivalent to the suit amount. On 18.3.2004 the appellant filed an application for review of the order dated 8.3.2004 submitting that since It was alleged that promissory note dated 22.4.2002 was a result of fraud and without consideration, the condition for filing of surety may be dispensed with. The learned Trial Court through its order dated 25.3.2004 dismissed the application filed by the appellant and forthwith passed the impugned decree.
4. The learned counsel for the appellant argued that imposition of a condition was harsh as the substantial question of law and facts had been raised which needed proper evidence and the defence set up was not illusory. On the other hand, the learned counsel for the respondent defended the impugned decree. It was argued that a condition had been imposed and the appellant failed to fulfill the said condition of furnishing of surety; non-compliance with the order dated 8.3.2004 would have resulted into automatically passing of a decree.
5. I have heard the arguments advanced by learned counsel for the parties and perused the record.
6. It is an established law that where allegation of fraud requiring inquiry is raised leave to defend the suit shall be granted unconditionally. There must be strong and cogent reasons given when a condition is imposed by the Trial Court while granting leave to defend the suit. The condition should not be imposed to non-suit the defendant. The wording of Order 37, Rule 3(2) of C.P.C. Is as under:- "(2) Leave to defend may be given unconditionally or subject to such terms as to payment into Court, giving security, framing and recording issues or otherwise as the Court thinks fit."
This wording shows that discretion has been given to the Trial Court and this discretion should be exercised judicially and liberally keeping in view the facts of the case and not to non-suit the defendant who has a plausible defence. Had the defence been illusory and sham and condition may be imposed but not in cases where a plausible defence is made out which requires adducing of evidence.
7 Moreover, a condition should not be imposed in a mechanical manner and reasons must be recorded in justification of the condition imposed by the Trial Court. In case of imposition of condition in a suit filed on the basis of a promissory note, the plausibility of defence is a determinative factor. Vast discretion has been given to the Trial Court to grant leave to defend the suit conditionally or unconditionally but such discretion has to be judicially exercised and not to shut out a plausible defence.
8. It is correct that the object and spirit of Order 37, C.P.C. Is to provide mechanism for speedy, efficacious and summary remedy for recovery of money in respect of suits filed on the basis of promissory notes but this mechanism for speedy and efficacious remedy does not mean that the defendant be thrown out of the Court merely on the basis of non-fulfilment of a condition. It is true that presumption of truth is attached to a negotiable instrument; but when allegation of fraud or forgery of a negotiable instrument is pleaded, it makes a plausible defence. Especially, in cases of allegation of fraud the matter requires recording of evidence as the presumption of truth attached to a negotiable instrument under Section 118 of the Negotiable Instruments Act, 1881 is always rebuttable.
9. This proposition may hardly be disputed that the paramount consideration for the Court must always be to do justice. The logic of words should always yield to the logic of realities, particularly where the interest of litigants are involved. Fortunately, we can look forward to a greater infusion and convergence to religion, law and morality in the Islamic Republic of Pakistan unlike the secular States. Even otherwise the Trial Court was not justified in passing a decree in a mechanical manner as the paramount consideration in any system of administration of justice in Islamic society is to do complete justice.
10. For what has been discussed above, this appeal is accepted. Resultantly, the order dated 8.3.2004 and the decree dated 25.3.2004 are set aside. The appellant is granted an unconditional leave to defend the suit. The learned Trial Court shall conclude the trial within the period of two months from the date of receipt of this order. R.F.A. Accepted.