' SADIQ HUSSAIN BHATTI, J.---The appellant is aggrieved by the judgment dated 17.01.2014, passed by 1st Additional District Judge, Karachi Central in Suit No, 34 of 2011, whereby the suit was decreed in favor of the plaintiff / respondent No,l.
2. The facts of the case are that appellant and respondent No,1 are closely related inter se. The appellant borrowed a sum of Rs,2,500,000/- from the respondent No,1 in the first week of August, 2008. When the respondent No,1 demanded back the borrowed amount, the appellant issued him cheque No, 5396466 dated 9th August, 2008, drawn on Bank Al-Habib, for a sum of Rs,2,500,000/-.
This cheque, when presented, was dishonored by the said bank for the reason "FUNDS INSUFFICIENT". The respondent No,1 again approached the appellant for refund of the borrowed amount who assured him for the repayment of the same. However, the appellant failed to pay back the borrowed amount to the respondent and, finally, the respondent No,1 filed suit No, 34 of 2011 for recovery of the said amount. The appellant filed leave to defend application which was conditionally allowed vide order dated 23.5.2013, subject to furnishing surety in the sum of Rs,2,500,000/- within 30 days. The appellant, instead of furnishing surety in the said sum filed an application under section 114, C.P.C. Read with section 151, C.P.C. For review of the order dated 23.5.2013. This application was ordered to be heard along with the main case. Accordingly, the said application and the main suit were heard together and vide judgment dated 17.1.2014, the suit was decreed in favor of respondent No,1 while the application filed under section 114, C.P.C., was dismissed. Hence, this first appeal.
3. Learned counsel for the appellant submitted that the trial Court was not justified in the granting conditional leave as sufficient evidence was available with the appellant to disprove the case of the respondent No, 1 . Learned counsel, relying on the case of Muhammad Yousaf v. Allah Yar (PLD 1987 Lah. 101), argued that the learned trial Court was not justified in refusing him leave to defend as at such early stage the parties are not required to produce evidence and it is prima facie evidence which is to be taken into consideration. Learned counsel prayed that this appeal may be allowed and the case may be remanded to the trial Court to decide it afresh.
4. On the other hand, learned counsel for the respondent No,1 argued that the appellant should have filed an appeal to the higher forum if he was not satisfied with the conditional leave granting order and should not have filed an application under section 114, C.P.C. For review of the order granting conditional leave. He referred to the cheque issued by the appellant to the respondent, the deposit slip and the slip showing dishonoring of the cheque. He submitted that the trial Court was fully justified in granting conditional leave to the appellant and prayed that the impugned judgment may be maintained. On merits, learned counsel submitted that since the conditional leave granting order was not complied with, therefore, there was no need for the plaintiff/respondent No,1 to lead evidence and the trial Court was fully justified in decreeing the suit in favor of the respondent No, 1 .
5. I have heard the learned counsel for the parties and have perused the record.
6. Two questions arise for determination by this Court in the instant appeal: (i) whether the application under section 114, C.P.C. Read with section 151, C.P.C. Was maintainable and (ii) whether the trial Court was justified in decreeing the suit of the respondent No,1 on failure of the appellant to deposit surety pursuant to the conditional leave granting order?
7. First, I will take up the question regarding maintainability of the application filed by the appellant under section 114, C.P.C., read with section 151, C.P.C. An application for review of an order can be filed under section 114, C.P.C. Read with Order XLVII, Rule 1, C.P.C. Order XLVII, Rule 1 reads as under:--
1. Application for review of judgment.---(1) Any person considering himself aggrieved---
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order."
8. Perusal of the above quoted Order XLVII, Rule 1, C.P.C. Shows that the condition precedent for filing an application under section 114, C.P.C. Is discovery of new and important matter or evidence which was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or order made or if there is some mistake or error apparent on the face of record. A perusal of the leave to defend application and the application under section 114, C.P.C.
Read with section 151, C.P.C. Would reveal that neither there was any discovery of new and important matter or evidence nor is there any mistake apparent on the face of record which could justify filing of an application under section 114, C.P.C. For review of the order dated 23.5.2013. A review under section 114, read with Order XLVII, C.P.C. Can only be filed on the grounds enumerated in Rule 1 of the said Order in order to correct errors therein. In case the appellant was not satisfied with the order of the trial Court granting conditional leave to him, he should have assailed the same by approaching the higher forum. The learned trial Court, while deciding question of maintainability of the application under section 114, C.P.C., held as under:-- "Moreover, the provisions of Section 114, C.P. C. Under the law can only be invoked in the event of discovery of new matter of evidence but since no new matter of evidence was discovered in the matter therefore, the application under section 114, C.P.C. Is not maintainable and is hereby dismissed.
9. I find myself in complete agreement with the learned trial Court on the above question.
Therefore, concurring with the trial Court, I hold that the application under section 114, C.P.C., filed by the appellant to challenge the order dated 23.5.2013 was not maintainable and was rightly dismissed.
10. Now, coming to the next question i,e, whether the trial Court was justified in decreeing the suit of the respondent No,1 on failure of the appellant to deposit surety pursuant to the conditional leave granting order, it may be mentioned that the respondent No,1 filed suit under Order XXXVII, Rule 1, C.P.C. For recovery of Rs, 2,500,000/- which was based on a cheque issued by the appellant. Sub- rule (2) of rule 2 of Order XXXVII, C.P.C. Stipulates that in case such a suit is filed the defendant shall not appear or defend the suit unless he obtains leave from a Judge to appear and defend the suit and in case the defendant fails to obtain such leave or of his appearance and defence in pursuance thereof, the allegations in the plaint shall be deemed to be admitted, and the plaintiff shall be entitled to a decree as mentioned therein. Provisions of sub-rule (2) of rule 3 of Order XXXVII, C.P.C. Stipulate that leave to defend may be given unconditionally or subject to seen terms as to payment into Court, giving security, framing and recording issues or otherwise as the court thinks fit. In the present case, the trial Court thought it fit to grant conditional leave by directing the appellant/ defendant to furnish surety in the sum of Rs,2,500,000/- within 30 days vide order dated 23.5.2013. The appellant, instead of filing an appeal to assail the above conditional leave granting order, preferred an application for review under section 114, C.P.C. Before the trial Court, which, as stated above, was dismissed. The trial Court, while decreeing the suit of the respondent No,1, held as under:-- "So far the merits of the suit is concerned, since the defendant despite clear directions of the Court made in order dated 23.5.2013, has failed to deposit surety in the sum of Rs,2,500,000/- within 30 days, and that when such order of the Court is intact and is not challenged before the higher forum in the shape of revision application, and on the other hand, the plaintiff has already produced original documents as attached with the plaint as annexure 'A', and the plaint is verified on oath, therefore, this Court has no other option but to decree the suit of the plaintiff by invoking the provisions of Order XXXVII rule 3(ii), I am fortified in this behalf by the case law referred to above by the learned counsel for the plaintiff ..
11. Thereafter, the learned trial Court has referred to a number of judgments of the superior Courts which show a consensus that in case of non-compliance of conditions imposed in leave granting order, the trial Court had no option but to decree the suit. In this regard reliance may be placed on the case of Murtaza Haseeb Textile Mills v. Sitara Chemical Industries (2004 SCMR 882).
12. In view of the above, I am of the view that the learned trial Court was fully justified in decreeing the suit once the appellant failed to comply with the conditions imposed in the leave granting order. Since the suit was based on negotiable instrument and was filed under. Order XXXVII, Rule 1, C.P.C., and in the leave granting order the trial Court imposed a condition whereby the defendant/ appellant was required to furnish 'surety in the sum of Rs,2,500,000/-, the appellant/ defendant, instead of complying with the condition on which he was granted leave to appear and defend, adopted delaying tactics. Therefore, the trial Court was fully justified in decreeing the suit. I find no infirmity in the impugned judgment calling for interference by this Court.
13. The upshot of the above discussion is that this appeal is dismissed and the impugned order is maintainable.