MUHAMMAD ANWAR KHAN KASI, C.J.---This revision petition is directed against order dated 05.10.2015, passed by learned Addl. District Judge-III Islamabad-East, whereby application of the petitioner/defendant for leave to appear and defend in suit under Order XXXVII, filed by respondent for recovery of Rs.82-Lac along with mesne profit, was dismissed.
2. Brief facts of the case are that respondent filed a suit under Order XXXVII, Rule 1, C.P.C. Against petitioner with the averments that the latter promised to transfer land measuring 5-kanal situated in Sanjaliyan Bhara Kahu, against sale consideration of Rs.82/-lac in his favour but subsequently failed to do so and in order to repay the consideration, issued a cheque amounting to Rs.82/-lac, which on presentation stood dishonoured by the concerned bank.
3. In response to notice, petitioner entered appearance and filed an application for leave to appear and defend but the same was dismissed vide impugned order, which necessitated this petition.
4. Learned counsel pressed this petition, inter alia, on the grounds that while passing the impugned order, learned trial court ignored that a 3rd party had transferred land measuring 5-kanal in favour of respondent acting as guarantor whereafter the claim in the suit was not sustainable and in such circumstances impugned order is not warranted and amounts to defeat the cause of justice.
Learned counsel further averred that the suit was preferred on the basis of crude misrepresentation as no liability on the part of petitioner/defendant is outstanding while the cheque forming subject matter of the suit is an instrument without consideration.
5. It is added that the learned Trial- Court proceeded with the application in casual manner and turned down the request through a non speaking order which is short of reasoning on the plea of petitioner. Huge amount is being claimed by the respondent for which evidence is essential particularly when petitioner came up with specific stance and is ready to decide the case even on special oath.
6. Plaintiff, present in person, repelled the above submissions by stating that deal with regard to sale of landed property and issuance of cheques are admitted facts, which can be verified from the orders whereby petitioner was granted bail on the basis of compromise and said compromise deed Mark-A was also tendered during hearing of bail petition. No compromise negotiations ever held between them and that plea being agitated is an afterthought just to create a defence. It is further contended that petitioner deprived him of his hard-earned savings and in presence of admitted facts, cannot be allowed to contest the suit.
7. Heard and record perused.
8. There are two distinct versions, one set forth by the respondent/plaintiff and the other by petitioner/defendant. Plaintiff alleged that "pursuant to compromise, effected, during hearing of bail application, respondent failed to transfer the land or to return the amount" while petitioner came up with the stance contained in Para 9 of application for leave to appear and defend that "a settlement was carried out between the parties and in lieu of that settlement it was agreed between the parties in presence of Jirga persons that Qari Raza-Ullah will, stand surety for the answering defendant who will pay the amount to the plaintiff and as a consideration answering defendant shall transfer 2 Kenai land in favour of Qari Raza-Ullah, which has been handed over to said Qari Raza-Ullah hence there is absolutely no liability on the part of answering defendant and cheque is without consideration".
9. The above stated divergent stands require probe and, therefore, cannot be decided without affording opportunity to both the sides to adduce evidence. The order impugned is also short of reasoning to this effect and, therefore, cannot be termed as a speaking order.
10. In view of above, impugned order dated 5-10-2015 is set aside and leave to appear and defend the suit is granted subject to furnishing bank guarantee or solvent surety equal to the amount of Rs.8.2 Million to the satisfaction of learned Trial Court. The learned Trial Court shall conclude the trial within two months.
11. Petition allowed in above terms with no orders as to costs.