MUHAMMAD NAEEM ANWAR, J.- The instant petition filed u/s 115 of the Code of Civil Procedure, 1908 (C.P.C) is the outcome of order of the learned Additional District Judge/Izafi Zila Qazi, Matta Swat dated 30.06.2022, whereby in suit of the respondent bearing No.2/1 of 2021 titled "Hassan Zeb Vs. Qayum Khan" filed for recovery of Rs.13,00,000/- with 20% interest under order )(XXVII C.P.C, the application of the petitioner/ defendant for leave to appear and defend the suit was allowed but with directions to him to deposit half of the amount i.e., Rs.6,50,000/- within a period of one month.
2. Arguments heard and record perused.
3. It was contended by the respondent/ plaintiff in the plaint that there was a joint business of fruits between the parties, during which, for payment of outstanding amount, the petitioner has allegedly handed over a cheque bearing No.00000034 dated 12.09.2019 to him amounting to Rs.15,00,000/- of Habib Bank Limited College Chowk Branch while the total outstanding amount against the petitioner was Rs.19,75,000/-. The said cheque could not be encashed due to insufficient amount in the account of the petitioner. The petitioner/defendant, being served with the notice issued under XXXVII C.P.C submitted an application for leave to appear and defend the suit that on the basis of an agreement dated 22.10.2020, whereby the dispute of the cheque and the amount mentioned therein has already been resolved and now nothing was outstanding against him. The copy of agreement dated 22.10.2020 was annexed with the application, which reflects that the matter of cheque has already been settled. Though the copy of written reply to the application has not been annexed with the instant petition rather a compromise deed pertaining to criminal case bearing FIR No.200 dated 21.01.2020 registered under sections 489-F/420 PPC at Police Station Matta, Swat was produced, Para No.2 of the same reflects that the matter between the parties has been settled.
This compromise was affected on 30.06.2021. During the course of arguments, when learned counsel for the respondent was confronted about the factum of bail cancellation application, agreement 22.10.2020 and other documents, who submitted at the bar that there were certain other disputes and a B.C.A was pending adjudication before the Court. He also produced written terms and conditions of the compromise deed dated 08th of July, 2019, however, neither copy of the written reply of the respondent is available on record nor same was produced during arguments. In accordance with sub-rule 2 of rule 3 of order XXXVII C.P.C, the. Court may grant unconditional leave or leave with condition for further determination of issues and grant of leave or refusal thereof is based upon the facts of the case. When the petitioner contends that the matter pertaining to cheque in question has been settled and nothing was outstanding against him whereas the respondent was refuting his contention but even then the fact of ibid FIR and compromise qua the application filed u/s 497 (5) Cr.P.C for cancellation of bail were the reasons entitling the petitioner for grant of unconditional leave, leave should not have been granted with harsh condition.. Grant of unconditional leave does not amount to dismissal of the suit as same shall be decided on the basis of evidence but in such circumstances, the petitioner/ defendant could not be directed to deposit half of the amount as mentioned in the cheque. Though, the learned trial Court has made the reference of the compromise, B.C.A and the agreement but has failed to decide the application in its true perspective especially when the facts were verified through affidavit submitted at the foot of the application.
4. The object underlying the summary procedure is to prevent unreasonable obstruction by a defendant who has no defence. Principles for grant of leave to defend the suit are as under:
(i) If the defendant satisfies the Court that he has a good defense to the claim on merits, the defendant is entitled to unconditional leave to defend.
(ii) If the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defense, although not a possibly good defense, the defendant is entitled to unconditional leave to defend.
(iii) If the defendant discloses such facts may be sufficient to entitle him to defend, that is, if the affidavit discloses that at the trial, he may be able to establish a defense to the plaintiffs claim the Court may impose conditions at the time of granting leave to defend the conditions being as to the time of trial or mode of trial but not as to payment into Court or furnishing security.
(iv) If the defendant has no defense, or if the defense is sham or illusory, or practically moonshine, the defendant is not entitled to leave to defend.
(v) If the defendant has no defense or the defense is illusory or sham or practically moonshine, the Court may show mercy to the defendant by enabling him to try to prove a defense kit at the same time protect the plaintiff by imposing the condition that the amount claimed should be paid into Court or otherwise secured.
In view of the above, the overall object of the suit under Order XXXVII C.P.C 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 the plaintiff from obtaining an early decision by raising untenable and frivolous defenses. If the Court believes 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 a condition. Grant of unconditional leave to defend is the right of the party when through facts he could substantiate his contention that reasonable grounds do exist to contest the suit without being burdened by the condition for leave if the facts disclosed by the defendant indicate that he has a substantial defence to raise, which means that defence so raised has good chance of success or has good potentiality to dislodge the plaintiff or which is bona fide and honest one and raises such question of law or of facts which requires resolution through judicial scrutiny.
5. The principles for grant or refusal of leave to defend the suit were laid down by the Hon'ble apex Court in the case titled "Fine Textile Mills Ltd Karachi vs. Haji Umar" (PLD 1963 Supreme Court 163) wherein it was held that: "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 eitherto 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 4 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 fry 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 affidavit."
The defence in the application is neither vague nor illusory rather is free from suspicion. 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, arc 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 bona fide 'and the conduct of the defendant.
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."
Reliance may be placed on the cases of "Habib 'Bank Limited, Circle Office, Multan vs. Al-Oaim Traders and another" (1990 SCMR 686) & "Abdul Rauf Ghauri vs. Mrs. Kishwar Sultana and four . others" (1995 SCMR 925). The intention of the legislature for grant of leave unconditionally was to the effect that the defendant should not be burdened with conditional leave to appear and defend the suit, in view of overall facts and circumstances of the case.
6. Thus, for the reasons mentioned above, this petition is allowed, the order of the learned trial Court dated 30.06.2022 is hereby modified and unconditional leave is granted to defend the suit. It appears that this Court has only suspended operation of the impugned order but today learned counsel for the parties have admitted that the proceedings before the learned trial Court have been suspended. Thus, office is directed to transmit a copy of this order to the learned trial Court, which shall decide the fate of the suit. after recording of evidence in accordance with law. No order as to cost. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.