SYED ARSHAD ALI, J. This appeal is directed against the judgment and decree of the learned trial Court dated 12.03.2018; whereby the learned trial Court has decreed the suit of the respondent for recovery of Rs.
3,902,500/- filed under Order XXXVII of the Civil Procedure Code, 1908 ("C.P.C.") and the application for leave to defend filed by the present appellant was dismissed vide order dated 22.01.2018.
2. Essential facts of the case are that the plaintiff/respondent had instituted a suit on 30.10.2017 against the present appellant for recovery of 14. 3,902,500/-. It was averred in the plaint by the plaintiff that he as well as the present appellant are government contractors, therefore, with their mutual partnership, two contracts were assigned to them for constructions of two government primary schools and in this regard a proper agreement dated 07.10.2018 was executed. However, when the disputed amount remained outstanding against the present appellant, the appellant executed a cheque bearing No. B.A 0794603 dated 25.04.2015 drawn against National Bank of Pakistan, Thana Branch, Malakand Agency in the name of Anjam Ali Khan (the present respondent).
Upon presentation of the said cheque by the respondent before the concerned bank, the said cheque was dishonored on account of insufficient amount in the bank account.
3. The present appellant was issued a notice in the prescribed manner and in response to the said notice, he appeared before the Court and filed an application for leave to defend. The learned Court vide order dated 22.01.2018 dismissed the said application and asked the plaintiff/respondent to record his evidence. In support of his claim, the plaintiff/respondent appeared as PW-6 and produced all the relevant documents. The representative of the National Bank of Pakistan (Thana Branch) appeared as PW-5 who produced the relevant record regarding the statement of account of the defendant/appellant and affirmed that the memorandums dated 30.04.2015 and 18.05.2015 respectively have been issued by the National Bank of Pakistan (Thana Branch) regarding the said cheque which was dishonored due to insufficient amount in the account. On conclusion, the learned Trial Court vide impugned judgment and decree dated 12.03.2018 had decreed the suit to the extent of Rs.3,902,500/- in favour of the plaintiff/respondent and against the defendant/appellant. Hence, the present regular first appeal.
4. Learned counsel appearing on behalf of the appellant has argued that the impugned conduct of the learned trial Court, whereby his application for leave to defend was dismissed amounts to denial of a fair trial which offends Article 10-A of the Constitution of Islamic Republic of Pakistan. He has further argued that despite the fact the application for leave to defend was filed within time but the same was dismissed on flimsy grounds. Conversely , learned counsel appearing on behalf of the respondent has argued that the respondent has produced proper evidence and on the basis of the said evidence, the suit was decreed by the trial court and as such the same does not call for interference.
5. Arguments of learned counsel for the parties were heard and with their able assistance the record was perused.
6. The claim of the plaintiff/respondent was based on an agreement dated 07.10.2013 exhibited as Ex PW 1/1, whereby both the parties had undertaken to be partners and two contracts were assigned to them for constructions of two government primary schools. The plaintiff/ respondent has also relied upon the acknowledgement/declaration dated 18.03.2015 effected in between the parties, whereby he had admitted that an amount of Rs. 7,805,000/- is payable to the parties, out of which an amount of Rs. 3,902,500/- the defendant/appellant owe to the plaintiff/respondent for which a cheque bearing No. BA 0794603 was handed over to him by defendant/appellant. However, when the defendant/ appellant appeared before the Court and filed an application for leave to defend, he has denied all the documents, including the execution of disputed cheque, and has only stated that the said documents are forged and the plaintiff/respondent is adamant to extract money from the defendant/appellant. In his entire application for leave to defend, he has uttered no word regarding the fact as to whether he had executed the said cheque or it belongs to the account maintained by him in the National Bank of Pakistan (Thana Branch). In this background the learned trial Court dismissed the said application vide order dated 22.01.2018 and asked the plaintiff/respondent to produce his evidence. The plaintiff/respondent in support of his claim produced Amanullah Khan as PW-1, who is the marginal witness to the partnership agreement dated 07.10.2013 and the acknowledgment dated 18.03.2015. Alamzeb was produced as PW-2, who is the marginal witness of the deed dated 18.03.2015 and has also supported the claim of the plaintiff/respondent. The plaintiff/ respondent produced Haji Aziz-ur-Rahman, scribe of the deed dated 18.03.2015 as PW-3, whereas one Khadi Muhammad, scribe of the deed dated 07.10.2013 was produced as PW-4, Iftikhar representative of the National Bank of Pakistan (Thana Branch) was produced as PW-5, who has confirmed in his statement that the defendant/ appellant has maintained his account in the National Bank of Pakistan (Thana Branch). He has also confirmed that through memorandums dated 30.04.2015 and 18.05.2018 respectively , the cheque bearing No. B.A 0794603 dated 25.04.2015 for an amount of Rs.3,902,500/- was presented against the account of defenda nt/appellant, however , the said cheque was dishonored due to insuf ficient amount in the account of the defendant/appellant, whereas the plaintif f/respondent appeared as PW-6 in support of his claim.
7. A close perusal of Order XXXVII of the C.P.C. reveals that it envisages a summary procedure where the suit is based on bills of exchange, hundies or promissory notes. On the receipt of summon in the prescribed fine, Order XXXVII, Rule 3 of C.P.C. envisages that the defendant as a matter of course cannot defend the suit and has to apply for leave to appear and to defend the suit upon affidavits that 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. However, the law maker has left the discretion of the Court un-structured, while adjudicating upon the application for leave to defend. In Messrs ARK Industrial Management Ltd. v. Messrs Habib Bank Limited (PLD 1991 Supreme Court 976) the august Supreme Court of Pakistan regarding the discretion of the Court while deciding the application for leave to defend has held that:- "Where the statute itself had left the Cour t with unfettered discretionary powers, it would be improper to lay down a rule of dumb for the exercise of such powers".
Therefore, no uniformed criteria exist structuring the discretion of the Court for grant of leave to defend the suit filed under Order XXXVII, C.P.C. However , in case of Fine Textile Mills Ltd., Karachi v. Haji Umar (PLD 1963 Supreme Court 163), the august Supreme Court of Pakistan while relying on the principles laid down by the Court of appeal in England in the case of Kodak v. Alpha Film Corporation (1930) 2 KB 340), had laid the following criteria to be considered by the Court while adjudicating upon the application for leave to defend:- "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 defense will succeed; it is enough that such a plausible defense is verified by af fidavit".
8. This issue was further elaborated by the august Supreme Court of Pakistan in Haji Ali Khan and Company , Abbottabad and 8 others v. Messrs Allied Bank of Pakistan Limited, Abbottabad (PLD 1995 Supreme Court 362) as following:- "The defendant must make an application with 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. And if it is a case entitling the defendant to leave to defend, then, sub-rule (2) of Rule 3 empowers the Court to give it conditionally of subject to such terms as the Court thinks fit. It follows necessarily from the language of Rule 3, sub-rule (1), that if the affidavit does not disclose facts which snake it incumbent upon the holder to prove consideration or such other facts as the Court may deem sufficient to support the application, then it is not a case in which leave to appear and defend will be given. Therefore, included in the power to grant leave to appear and defend is the power to refuse such leave".
Similarly , the august Supreme Court of Pakistan while dealing with a case, where the learned trial Court had granted leave to defend to the defendant on his application which was completely vague regarding to the triable issue in case of Messrs National Security Insurance Company Limited and others v. Messrs Hoechst Pakistan Limited and others (1992 SCMR 718 ) has held that:- "Without examining the said defences and the objections of the opposite party, the learned Judge could not have granted leave to defend, much less to have granted leave unconditionally. Under Order XXXVII, Rule 3 of the Code, before the Court can grant leave to a defendant to appear and defend a suit, it must prima facie ford from his application and affidavits that there is reasonable material which makes it incumbent on the plaintiff to, prove consideration or there exists a plausible defence or some specific question of fact or law, which requires to be tried or investigated".
The said view was also re-affirmed by the august Supreme Court of Pakistan in Rana Mumtaz Ahmed Noon v.
Muhammad Javed Khan (1999 SCMR 1845 ).
9. I have pursued the application for leave to defend filed by the defendant/appellant in view of the law laid down by the august Supreme Court of Pakistan and come at the conclusion that the said defence in the said application, the defendant/ judgment debtor has taken illusory and vague defence. In the said application neither has anyth ing been stated about the financial relationsh ip between the parties and the execution of the impugned cheque nor has the plaintif f been called upon to prove the consideration. Whereas, after refusal of leave although the Court could pass the judgment and decree in favour of the plaintif f after perusing the available record as held by the august Supreme Court of Pakistan in Haji Ali Khan's case supra. However, the plaintiff was asked to produce evidence in support of his claim. Accordingly the plaintiff produced evidence as elaborated above and he through the said evidence duly established before the Court the execution of partnership agreement dated 07.10.2013, acknowledgement and maintaining of the account by the defendant in National Bank of Pakistan (Thana Branch) and the fact that the said cheque belonged to the account which was maintained by the defendant in the National Bank of Pakistan (Thana Branch) and on presentation of the same, which was dishonored due to insufficient amount, albeit the fact that the disputed cheque was issued against consideration.
10. In such state of affairs, the learned trial Court has rightly dismissed the application of the defendant/appellant for grant of leave and the subsequent decree is based on proper appreciation of law and evidence on the subject which does not call for interference in the present appeal.