SHAKEEL AHMAD, J.- Through the instant revision filed under section 115 CPC against the impugned order dated 17.9.2018, passed by learned Additional District Judge-V , D.I.Khan, whereby learned trial court accepted the application of the respondent/defendant seeking leave to defend the suit.
2. Facts in brief are that Noor Ahmad petitio ner has filed a suit for recovery of Rs.10,00,0000/- under Order XXXVII of Code of Civil Procedure, 1908 in the court of learned Additional District Judge-V , D.I.Khan, this suit was filed on the basis of cheque issued by the appellant which when presented was dishonoured by the bank concerned.
3. The recital in the plaint reveals that the petitioner was carrying on partnership business with one Mohibullah Khan, he with his partner paid Rs.1,88,00,000/- to the respondent/defendant for construction of road NLC (C.P.E.C), during this period, dispute arose between the parties and in order to resolve the dispute amicably an arbitration agreement was scribed on 16.01.2017, wherein it was agreed upon that the respondent would pay an amount of Rs.2,68,00,000/- to the petitio ner out of which Rs.68,00,000/- paid to him and his partner with interval and for the repayment of remaining amount i.e Rs. 2,30,00,000/-, respondent issued two cheque in the name of petitioner and his partner , when the cheques bearing No.1629251326 dated 31.01.2017 and No. 1629251325 dated 15.02.2017 of Rs.1,10,00,000/- were presented to the bank concerned it was bounced due to insuf ficient amount which culminated in registration of crime No.317 dated 07.4.2017 registered under section 489-F PPC at police station Cantt. D.I.Khan. The petitioner/plaintif f demanded the payment of the amount but in vain which necessitated to file the suit under order XXXVII of Code of Civil Procedure, 1908.
4. After service of summon, the respondent put his appearance and submitted an application for leave to defend the suit on 16.6.2017, wherein he maintained that the arbitration award dated 16.01.2017 is forged, fictitious and fraudulent and also denied issuance of cheque to the petitioner . He also pointed out that he has not received amount in question either from the petitioner or his partner and business dealing as well, with the petitioner .
Regarding FIR, he maintained that a false and frivolous case has been registered against him. Learned trial court after receipt of the reply of the application granted conditional leave to defend the suit subject to deposit of 1/4 of the suit amount within 40 days from the date of order , hence, this petition.
5. Learned counsel for the petitioner has attacked the order of learned trial court granting leave to defend the suit subject to deposit of 1/4 amount instead of suit amount. It is urged before me that the order is illegal, without jurisdiction, arbitrary and of no legal effect as no triable issue can be spelt out from the contents of the application for leave to defend.
6. After hearing learned counsel for the petitioner at length and going through the record before me, I am of the view that the order granting leave to respondent to defend the suit conditionally subject to deposit of 1/4 of the suit amount did not call for interference by me.
7. The only question before me is whether the defendant has made out a case for grant of leave to defend the suit and if so, whether the leave should be subject to deposit of suit amount claiming by the petitioner or not. In the context of grant of leave, the court is required to examine all questions which can or may arise by way of defence as deducible not merely on the basis of what the defendant pleads or says in relation to his application for leave to defend but with reference to the entire record before the court.
8. The principle for grant or refusal of leave to defend the suit was laid down by the Hon'ble Supreme Court of Pakistan in the case reported as Fine Textile Mills Ltd. Karachi vs. Haji Umar (PLD 1963 Supreme Court 163), wherein it was observed 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. Wheat 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 principle upon which the provision of Order XXXVII of Code of Civil Procedure, 1908 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 vs 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 bonafide 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 affidavit"
9. I am satisfied that the contents of application, on the face of it, discloses a triable issue and a plausible defence and not a shame one and merit due examination, thus, he made out a case for grant of leave to defend the suit.
10. Adverting next to the contention of the learned counsel for the petitioner that learned trial court was under legal obligation to grant the leave subject to deposit of suit amount. The Rule 3 of the Order XXXVII Code of Civil Procedure, 1908 deals with the case in which the respondent/defendant after receipt of summons applied for leave to defend. It will adventurous to reproduce the same for ready reference:-
3. Defendant showing defence on merits to have leave to appear .--(1) 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.
11. A plain reading of sub rule 2 of Rule 3 of the order ibid reflects that leave to defend in a suit can be granted unconditionally or subject to such terms as to payment into the Court giving securi ty, framing and recording issues or otherwise as the Court would think fit.
12. It is now settled that the conditions should not be harsh, unjust or oppressive and even furnishing of any solvent security including a surety is sufficient. In this behalf reliance can be placed on the case reported as Abdur Rauf Ghauri vs. Mrs. Kishwar Sultana and 04 others (1995 SCMR 925) wherein the august supreme court set aside the order of High Court and that of trial court to the extent it imposed condition of bank guarantee as a term forth th th defending suit and order in question was modified to the extent that leave to defend the suit would be deemed to have been granted subject to furnishing any solvent security to the satisfaction of the trial court. In the case reported as Kokab Javed vs Abdul Ahad (2005 CLC 1135), the High Court set aside the order, whereby the defendant was directed to furnish the bank guarantee and ordered that defendant shall furnish only the security to the satisfaction of the trial court within a period of two weeks. In this context, reliance can also be placed on the case reported as Sala ud Din and others vs Messrs Avon Shoes Co. (1995 MLD 185) wherein it was observed as under:- "In my view the learned trial court acted arbitrarily in attending the condition of furnishing bank guarantee, which amounts to burdening the petitioner with the sued amount before full trial of the case and affording them an opportunity to prove their case. It was a case where the requirements of justice would have been satisfied by asking the defendant to furnish personal security"
In this behalf reliance can also be place d on Sved Sharaf Ali Shah's case (2000 CLC 1646 ) wherein leave to defend the suit was granted subject to furnishing security , however , the defendant instead of furnishing security furnished surety which was objected by the petitioner/plaintif f. The High Court held that furnishing of surety was also fully covered by the term security .
13. For what has been discussed above, I find no illegality or irregularity or jurisd ictional defect in the impugned order of the learned court below , the instant revision petition, being bereft of merit, is hereby dismissed in limine.