IJAZ ANW AR, J.- Through our this common judgment, we intend to decide this and the connected writ petitions bearing No. 3207-P/2017 titled Muhammad Nasim vs. Kashif Nasim as in both the writ petitions a common question of law and facts are involved.
2. The background of the writ petitions are that Kashif Nasim, respondent herein, filed two suits bearing No. 04/1 and 05/1 of year, 2017, under Order XXXVII of the Civil Procedure Code, for recovery of Rs. 63,00,000/- and 85,00,000/- respectively alongwith profit at bank rate against Muhammad Nasim, petitioner herein, before learned Additional District Judge, Peshawar . On summon, the latter filed applications for leave to defend in both the above referred suits, which were accepted by the learned trial-Court, vide order dated 01.8.2017, subject to deposit of amount of Rs. 63,00,000/- and Rs. 85,00,000 respectively . Now, the grievance of Muhammad Nasim, who is petitioners in both the above referred writ petitions, is that since he has denied the issuance of cheques to the respondent No.1 and he is ready to send the alleged cheques, agreement deed and his signature to FSL for comparison, therefore, the impugned order dated 1.8.2017 in both the suits passed by learned Additional District Judge-XV , Peshawar , are arbitrary and liable to be set aside and seeks directions of this Court to the respondent No.2 for granting him leave to defend unconditionally .
3. Learned counsel for the petitioners while referring to Order XXXVII rule 2 and 3 of the C.P.C argued that prima facie case for grant of leave to defend has been raised before the 'learned lower forum, therefore, while allowing the applications for leave to defend on such a stringent condition regarding deposit of the whole disputed amount was uncalled for. Learned counsel placed reliance on 2011 MLD Lahore 1249 , 2013 CLD Sindh 1701 , PLD 2010 Lahore 219 and contended that the conditional leave to defend order is very harsh and certa inly will create extreme hardship for the petitioners.
4. On the other hand, learned counsel for the respondents argued that the court while hearing application for leave to defend has the discretion to impose the condition of deposit of amount equal to the amount disputed. He placed reliance on 2016 YLR Peshawar 43. He further contended , that the petitioner has since been convicted under section 489-F PPC on the charges of issuing a bogus cheque to the respondent pertaining to the same disputed amount, therefore, he is not entitled for any leniency . He further argued that the order impugned at the most can be questioned in revisional jurisdiction and writ petition is incompetent.
5. We have considered arguments of learned counsel for parties and have gone through record of the case.
6. The record reveals that the respondent instituted two separate suits against the appellant under Order XXXVII of C.P.C for the recovery of certain amount before the Court of Additional District Judge, Peshawar . Both the suits are based upon the cheques issued by the appellant, which were, later on, dishonoured by the concerned bank.
Learned trial Court after hearing the parties, conditionally allowed the application for leave to defend and the appellant was directed to deposit the entire amount in both the suits within 45 days.
7. Rule 3 of Order XXXVII of C.P.C deals with the case in which a defendant after receipt of summons apply for leave to defend. To appreciate the controversy , it would be appropriate to reproduce the same for the facility of reference:-
3. Defendant showing defence on merits to have leave to appear .- (l) The Court shall, upon application by the defendant, give leave to appear and to defend the suit, upon affidavits which disclose such facts as would make it incumbent on the holder to prove consideration, or such other facts as the Court may deem sufficient to support the application.
(2) Leave to defend may be given uncond itionally or subject to such terms as to payment into Court, giving security , framing and recording issues or otherwise as the Court thinks fit.
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Sub-rule 2 of Rule 3 of the Order , ibid, reveals that leave to defend in a suit can be granted unconditionally or Subject to such terms as to payment into Court giving security , framing and recor ding issues or otherwise as the Court would think fit. The principles for grant or refusal of leave to defend the suit were laid down by the Hon'able apex Court in the case titled Fine Textile Mills Ltd Karachi vs. Haji Umar (PLD 1963 Supreme Court 163). The relevant Para of the judgment is reproduced as under:- "In a suit of this nature where the defendant discloses upon his affidavits facts which may constitute a plausible defence or even show that there is some substantial question of fact or law which needs to be tried or investigated into, then he is entitled to leave to defend. What is more is that even if the defence set up be vague or unsatisfactory or there be a doubt as to its genuineness leave should not be refused altogether but the defendant should be put on terms either to furnish security or to deposit the amount claimed in Court.
The principles upon which the provisions of Order XXXVII of the Code of Civil Procedure should be applied are not dissimilar to the principles which govern the exercise of the summary power of giving liberty to sign final judgment in a suit filed by a specifically endorsed writ of summons under Order XIV of the Rules of the Supreme Court in England. One of such principles laid down by the Court of Appeal in the case of Kokak v.
Alpha Film Corporation (1) was that at the stage when leave to defend is sought "the Judge is not to try the action he is to see that there is a bona fide allegation of a triable issue, which is not illusory; he need not be satisfied that the defence will succeed; it is enough that such a plausible defence is verified by af fidavit."
The above referred judgment has repeatedly been followed by the Hon'able Supreme Court in number of cases.
Though, as referred by learned counsel for the respondent, the petitioner has been convicted by the competent Court under section 489-F PPC, however , learned counsel for the petitioner placed on file, during the course of his arguments, the attested copy of order dated 21.4.2017 passed by this court in Criminal Revision No. 49-P/2017 whereby this Court by admitting the criminal revision to regular hearing, suspended the operation of the judgment of conviction and sentence, awarded to the petitioner , besides both the criminal and civil proceedings are independent of each other and are to be decided on the strength of its own evidence.
8. We have examined the applications for leave to defend the suits, filed by the petitioner, wherein he has raised a number of questions including the denial of his signature on the disputed cheque. Similarly , the transaction between the parties is also in the nature of business. The questions so raised in the application for leave to defend in the suit based on the alleged issuance of cheque can only be determined after recording of. evidence. The defence in the application is neither vague nor illusory. In the case of Mian Rafique Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd and another (PLD 1996 SC 749, the apex Court held that when the facts disclosed by the defendant in the affidavit filed in support of his application for grant of leave to defend, are such that it becomes necessary for the plaintiff to prove consideration of the instrument, which is the basis of the suit, leave to defend may be granted unconditionally, provided the defence is found to be bonafide and the conduct of the defendant is free from suspicion. Leave to defend may also be granted unconditionally, in cases where the execution of the negotiable instrument is denied by the defendant and from the material before the Court it is not possible for it to record a positive finding in this regard at the stage of consideration of the application for grant of leave to defend.
Similarly , in the case titled Habib Bank Limited, Circle Office, Multan vs. Al-Qaim Traders and another 1990 SCMR 686, it was held that Higher forum can examine the question whether the discretion exercised in this behalf has been exercised legally , reasonably , fairly and not oppressively , capriciously or perversely and in that case the condition imposed by the lower court while granting leave to defend to deposit Rupees one crore in the Court was modified to the extent only to deposit Rupees 50 lacs. Similarly , the august supreme Court in the case titled Abdul Rauf Ghauri vs. Mrs. Kishwar Sultana and four others ( 1995 SCMR 925) followed the earlier view of the apex Court and held that where a plausible defence is raised in leave to defend which needs to be tried, leave to defend can be granted unconditionally .
9. Having taken guidance from the reported judgments of the apex Court and after examining applications for leave to defend where numerous plausible and triable issues are raised which require recording of pro and contra evidence, we are of the view that conditional order of leave to defend is too harsh and the order directing for deposit of the amount of equal proportion to the whole disputed amount, amounts to deprive the petitioner from defending the suits.
In the given circumstances, it would be appropriate to reduce the amount ordered to be deposited conditionally in the impugned orders and, thus, it is reduced to the extent of deposit of 20% of the total amount mentioned in the suits.
Before parting with this judgment, we may also refer judgment of the apex Cour t in the case titled Baluchistan Trading Company vs. National Bank of Pakistan and another (1998 SCMR 1899 ) wherein writ petition was held to be maintainable in situation of extreme hardship and absolute good conscience, besides there is no prohibition in substituting one proceedings to another to met the ends of justice.
10. For the reasons discussed above, this and the connected writ petition bearing No 3207-P/2017 are partially allowed and disposed of in the above terms.