' CH. MUHAMMAD MASOOD JAHANGIR, J.---By filing the instant appeal, the appellant/defendant has assailed the judgment and decree dated 16.01.2009 passed by learned trial court by virtue of which petition for leave to appear and defend the suit was dismissed and resultantly, summary suit for recovery of Rs,5,00,000/- instituted by the respondent/plaintiff was decreed.
2. According to the contents of the plaint, the respondent/plaintiff had advanced a I6an of Rs,5,00,000/- to the appellant/defendant and for its return cheque Mark-A was issued by the appellant/defendant, but the same was not honored and the respondent/plaintiff instituted the suit for its recovery under Order XXXVII, Rule 2 of the Civil Procedure Code, 1908 before the District Judge, Rajanpur. The appellant/defendant put his appearance before the Court and filed an application under Order XXXVII, Rule 3 of the Civil Procedure Code, 1908 to defend the suit with the assertion that he being accountant in the DHO office Rajanpur was performing his duties and respondent/plaintiff was also serving in the same office as a junior clerk, who committed theft of a cheque from the drawer of his writing table and on the basis of which, the suit was filed by the respondent/plaintiff. The said application was also supported by an affidavit. The respondent/plaintiff contested the said application by filing his reply, but failed to support the same by filing any affidavit. The learned trial court vide impugned judgment and decree dismissed the said application and straightaway decreed the suit of the respondent/plaintiff. Hence, the instant appeal.
3. Despite repeated calls today none has appeared on behalf of the plaintiff/respondent, who is duly represented through Syed Irfan Haidar Shamsi, Advocate whose power of attorney is available on file and his name is also duly published in the cause list. Case diary maintained by this Court also reveals that same was the position on last date of hearing i.e, 08.9.2015, but as on the date the name of learned counsel for the said date the name of learned counsel for the respondent/plaintiff was not displayed in the cause list, so it was adjourned for today and this time the office of this court has duly reflected his name in the cause list, who is absent without any prior intimation. The instant appeal is pending for the last more than 6-1/2 years and this court is not inclined to further adjourn the case. Hence, the respondent/plaintiff is proceeded against ex parte. Record of learned trial court is available, which has been scanned and arguments of learned counsel for the appellant/defendant heard.
4. The summary suit filed under Order XXXVII Rules 1 and 2 of the Civil Procedure Code, 1908 provides a special procedure for the parties and the defendant has no right to contest the suit unless he seeks permission to defend the same and leave is awarded to him by the court through a speaking order. The scheme introduced in Order XXXVII requires that the plaint should disclose an open and shut case for the plaintiff to prove and for the defendant to defend with reference to negotiable instrument relied upon in the plaint. In the case in hand, the appellant/defendant filed his application before the learned trial court well within time provided in sub-rule (2) of rule 2 of the Order ibid. No doubt, signatures over the cheque were admitted by the defendant, but at the same time, he pleaded that he was Accountant of a department and his said cheque was lying in the drawer of his office table from where his subordinate/junior clerk i.e, plaintiff removed the same and instituted the suit in hand. It is also averred in the application that respondent/plaintiff remained in jail as he was involved in a criminal case of fraud, which was lodged against him.
Copy of FIR No, 467 dated 29.11.2008 under sections 419, 420, 468, 471 of the Pakistan Penal Code, 1860 duly registered against the respondent/plaintiff by the concerned police under a letter issued by the EDO(Health), Rajanpur is also appended with the appeal. The respondent/plaintiff admitted in his reply that both of them were employed in Health department and working in the same office, however, it was denied that the cheque was stolen by him. A court could rarely refuse leave to defend the suit, where the defendant failed to disclose any defence and the real question to be determined is whether the leave should be conditional or unconditional. Where the defence raises and discloses a triable issue or a plausible defence or a prima facie case is made out, then leave should be granted as a rule. The court will neither go into the merits of the case to determine if the defence is good nor will it go into the truth or falsity of the defence. If the plausibility of the defence so raised appears to be determinative, then the court must exercise its jurisdiction in favour of the defendant while providing him opportunity to defend the suit. However, while deciding the application for leave to appear and defend the suit if the court reaches the conclusion that apparently the defence is not bona fide, but same requires recording of evidence, then leave can be granted by imposing equitable condition for the due performance of the decree and the condition should not be harsh, unjust and oppressive.
5. In the case in hand, the defence raised by the appellant/ defendant is not illusory. He was admittedly working as Accountant whereas the respondent/plaintiff being his subordinate was also working in the same office and in such circumstances the defence so raised by the appellant/defendant that the cheque had been removed by the plaintiff from the drawer of his office table required recording of evidence for its proof and disproof, which could not be determined without proper inquiry. It is yet ascertainable whether a junior clerk was financially so sound to extend a loan of Rs,5,00,000/- to the appellant/defendant and that too in the year 2008 or prior to that when it was a handsome amount. The plea raised by the appellant/defendant that plaintiff remained involved in a fraud case is supported by copy of FIR, which has also not been specifically denied by the respondent/plaintiff. Furthermore, the application for leave to defend filed by the appellant/ defendant is supported by affidavit, which was not controverted by filing counter affidavit. Any person acquainted with facts may make a declaration of facts in writing and sworn on oath by filing an affidavit. It is well established that any application supported by an affidavit, if not controverted by filing counter affidavit along with the written reply should be taken as correct statement of fact.
6. On the touchstone of above discussion, I have no hesitation to hold that the appellant/defendant succeeded to disclose a plausible defence while raising substantial question of fact, which needed to be tried or investigated, so he is entitled for leave to appear and defend the suit, but the learned trial court failed to exercise its jurisdiction judiciously and properly, which passed the impugned order in a hasty manner. However, as the appellant/defendant has admitted his signature over the cheque, so he is liable to be burdened, with the condition to satisfy the decree, if ultimately passed against him after going through the process of trial.
7. Consequently, the instant appeal is accepted, impugned judgment and decree dated 16.01.2009 passed by the learned District Judge, Rajanpur is hereby set aside and the application for leave to defend the suit field by the appellant/defendant is accepted subject to deposit of Rs,2,50,000 in cash and furnishing of surety bond to the extent of remaining amount i.e, 2,50,000 before the learned trial Court till 12.11.2015. The appellant/defendant will appear before learned District Judge/trial Court on 19.10.2015 for further proceedings.