This civil revision is directed against the order dated 17.10.2016, passed by the learned A.D.J., Jaranwala, whereby condition imposed for leave to appear and defend, was not complied by the petitioner/defendant and consequently upon failure of tendering surety bond to the required amount, his leave granting order dated 22.09.2016 was recalled.
2. Precise, facts of the case are that the respondent/plaintif f filed a suit on 13.05.2016 under Order XXXVII CPC for recovery of Rs.76,95,000/-, on the basis of Cheque No.254501 13, Habib Bank Limited, Rodala Road, along with penal interest, before the learned A.D.J., Sub-Division, Jaranwala.
3. The petitioner/defendant appeared before the court and filed his application for leave to defend. This application was allowed by the trial court, subject to deposit of surety bond in the like amount of Rs.80,00,000/-. The petitioner/defendant, after not fulfilling the requirement of order dated 22.09.2016, opted to file an application under the provisions of Section 151 CPC, for recalling of order to the extent of imposition of surety bond for sum of Rs.80,00,000/-.
4. Learned counsel for the petitioner contends that, when the leave to defend was granted, the moment it was assumed that a plausible and triable issue involved in the matter , therefore, the imposition of condition for filing of surety bond is not the pre-requisite of Order XXXVII CPC; that the petitioner is in judicial lock-up and he is unable to procure any kind of surety as desired by the trial court.
5. I have heard learned counsel for the petitioner and have perused the record.
6. Before invoking upon the merits of the case, it is appropriate to re-produce the provisions of Order XXXVII Rule 3(2) CPC:- "Summary Procedure on Negotiable Instrument .
3(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".(Emphasis provided)
The above cited legislative commandment granted unfettered discretionary powers to the trial court at the time of permitting leave to appear and defend the suit, subject to such terms and conditio ns, as the Court thinks fit. Here, in the present case, the trial Court opined that surety bond amounting to Rs.80,00,000/- should be submitted before further proceedings of the case, but the petitioner/defendant failed to discharge his obligation, therefore, the said condition remained intact. The petitioner/defendant averred that some amount of loan was taken from one Talib Hussain but he did not give any cheque in favour of the plaintif f. This very plea cannot be ascertained mere on the basis of pleadings; therefore, the Court while granting leave to appear and defend the suit imposed conditional order , subject to furnishing of surety bond of Rs.80,00,000/-.
7. It is the prerogative of the Court to grant leave to appear and defend the suit, conditional or unconditional. In this regard, the defendant has to satisfy in all conscience of Court before recording of evidence that the stance put-forth by the plaintif f was somewhat factually plausible. If it is in the opinion that the defendant raised a triable issue before the Court, even then it would be justified, if some condition would be impos ed upon him and the Court can do so under his discretionary powers.
8. The apex Court in case reported as Messrs ARK Industrial Management Ltd. vs. Messrs Habib Bank Limited (PLD 1991 Supreme Court 976) has held that where the statute itself had left the Court with unfettered discretionary powers, it would be imprope r to lay down a rule of thumb for the exercise of such powers. The overall object envisaged by the legislature was to provide expeditious disposal of litigation involving commercial transactions of a particular nature by a summary procedure so that the defendant does not have the means open to exploitation in the ordinary procedure for trial of suits to prolong the litigation and to prevent plaintif f from obtaining an early decision by raising untenable and frivolous defences. If the court is of the opinion that the defendant is trying to prolong the litigation and impeding a speedy trial although on the allegation made in the application, a triable issue has been raised then the Court would be justified to impose condition.
Similar , view has been taken in the judgm ent reported as Mian Rafique Saigol and another vs. Bank of Credit and Commerce International (Overseas) Ltd. and another (PLD 1996 Supreme Court 749). In this case, leave to defend was granted subject to furnishing bank guarantee. The apex Court while dealing with the matter held that the exercise of discretion by the Court while granting leave to defend the suit under Order XXXVII CPC with condition of furnishing bank guarantee is a matter of discretion of the trial court and this discretion granted by the statute itself; therefore, the discretion exercised by the court in such like cases, based upon the facts and circumstances of each case. It is neither possible nor advisable to lay down any hard and fast rule in this behalf.
In Zubair Ahmad and another vs. Shahid Mirza and 2 others (2004 SCMR 1747 ), it was held that the grant of conditional or unconditional leave having direct nexus with the plausibility of defence, the ultimate success or failure in the suit is not the consideration for refusal or grant of leave, rather the consideration is that the grounds taken in the application for grant of permission to defend the suit are plausible and defendant has arguable case but there is no rule that if the defence is plausible, the defendant must be grante d unconditional leave. Further it was held that the conditional grant of leave is not questionable if the order was passed in exercise of discretionary jurisdiction providing an opportunity of hearing to the defendant. The other citations as ready reference reported as Muhammad Azad vs. Malik Zahoor (2008 CLD 1128), Abdul Karim Mengal vs. Sultan Badshah (2010 YLR 2596) and Muhammad Adnan (Muhammad Irfan) vs. Additional District Judge and others (2013 CLC 85) also affirmed the supra proposition.
9. Reverting again to the facts of present case, order for grant of conditional leave was passed, after providing full opportunity of hearing to the petitioner , who without showing a good defence pleaded for grant of unconditional leave as of rule. The defence of the petitioner can be ascertained from the conten ts of the application for leave to defend, where the petitioner admitted that he borrowed some rupees for the purpose of business from one Talib Hussain. Talib Hussain procured some cheques in lieu of loan from the petitioner , upon which the petitioner signed some cheques without mentioning any amount, handed over to Talib Hussain who is a close relative of the petitioner and now on the behest of said Talib Hussain, the plaintif f filed this suit with mala-fide intention. The petitioner/defendant returned the borrowed loan alongwith interest to Talib Hussain.
10. It is very interesting that while applying for leave to defend, the petitioner even did not mention that how much investment is required for such and such business, what kind of business he started from particular investment.
Similarly , in the application, the contention that he has returned the borrowed amount, was not even mentioned that such and such amount was returned by the petitioner/defendant alongwith interest. Moreover , it is prima-facie assumed that the cheque, in question, was issued by the petitioner/defendant and there is no denial that the cheque or bank account was not related to him. In these circumstances, the trial court passed a well-reasoned order while granting leave to defend to the petitioner/defendant, subject to deposit of surety bond in the like amount of Rs.80,00,000/- on or before the next date of hearing. The application under Section 151 CPC, filed by the petitioner/defendant for recalling of order of imposition of surety , after availing reasonable period for submission of surety bond, is based upon mala-fides and having no force of legitimacy for recalling of earlier order dated 22.09.2016, passed by the trial court.
11. The contention of the petitioner of confining in the judicial lock-up is also not beneficial to the petitioner/defendant. The petitioner/defendant even from the judicial lock-up can lawfully manage any kind of legal acts; mere confinement behind the bar is no reason that he could able to not arrange the surety . Therefore, the condition imposed on the petitioner was not liable to be recalled, and the trial court rightly turned down the said prayer vide his order dated 17.10.2016.
12. The upshot of the above discussion is that the petitioner/defendant has failed to make out a case for interference in the order dated 17.10.2016, passed by the learned trial court, whereby the learned trial court exercised its discretion legally vested in it by law; hence, the present civil revision petition is devoid of any force, which is accordingly dismissed.