On 30-3-1988 Muhammad Hussain Shah respondent instituted a suit under Order XXXVII C.P.C.
Against Abdul Malik Ghauri petitioner for the recovery of Rs.40,000 on the basis of promissory note dated 15-8-1985. Summons in Form-4 of Appendix-B as contemplated under rule 2 of Order XXXVII, C.P.C., was issued against the petitioner. In response to the said summons the petitioner appeared before the learned trial Court (District Judge, Bahawalpur on 3-7-1988 and moved an application for grant of leave to appear and defend the suit maintaining that the promissory note m question was without consideration. He alleged that in fact he had borrowed pesticides of the value of Rs.40,000 from the respondent and had executed the promissory note by way of security and that he had returned to the respondent pesticides worth Rs.12,531, Rs.600 in cash and on his asking had paid Rs.10,000 to one Obaid, an employee of the Habib Bank Ltd. He, however, admitted that only sum of Rs.16,869 was due from him. The said application was resisted by the respondent who controverted the allegations contained therein. After hearing the parties on the said application, the learned trial Court vide order dated 27-9-1988 granted leave to the petitioner to defend the suit subject to the furnishing of bank guarantee equal to the amount claimed in the suit or in the alternative to deposit the said amount in Court before the 29th October, 1988 failing which the application for leave to defend the suit would be considered to have been dismissed. Through the instant writ petition the petitioner wants this Court to declare the order dated 27-9-1988 passed by the learned District Judge, Bahawalpur to be illegal, arbitrary, void and in excess of jurisdiction.
2. I have heard the parties' counsel and have gone through the record.
3. Learned counsel for the petitioner has contended that the condition attached with the leave to defend the suit was harsh and not in accordance with the principles laid down by the Superior Courts. He maintained that unconditional leave to appear and to defend the suit should have been granted to the petitioner because he had shown a good prima facie case and has raised a triable issue. He further maintained that the learned trial Court had not exercised its discretion in a judicious manner and thus the impugned order was illegal, arbitrary and in excess of jurisdiction.
He placed reliance on Sh. Muhammad Ramzan v. Special Judge Banking Court 1986 M LD 614 (Lah).
4. On the other hand learned counsel for the respondent contended that while granting leave to defend the suit under Order XXXVII, rule 3, C.P.C. The trial Court was competent to impose any condition including furnishing of bank guarantee or the payment in Court of the amount claimed in suit and that the legality of the said condition could not be questioned as the same had been imposed by an order in exercise of discretion. He relied on Khalid Javed & Co. v. Javed Oil Industries 1988 SCM R 391 and International Food Centre Ltd. v. United Bank Limited Karachi and 2 others 1982 CLC 108 (Lah.). Learned counsel further contended that the present writ petition was incompetent as the remedy of revision was available to the petitioner which he had not exhausted before approaching the High Court to invoke its constitutional jurisdiction. In this regard he placed reliance on Allah Ditta and others v. Malik Ijaz Hussain 1986 SCM R 959.
5. As regards the competence of the trial Court to grant leave to defend the suit subject to the condition of furnishing bank guarantee or payment in Court of the amount claimed in suit the law laid down by the Superior Courts is very clear and unambiguous. In Khalid Javed & Co.'s case their Lordships of the Supreme Court have held that a trial Court was fully competent to impose such a condition. The same view was taken by this Court in the case of International Food Centre Ltd.
Wherein it was also held that the imposition of condition was well within the discretion and jurisdiction of the trial Court. Even in Sh. Muhammad Ramzan's case, on which learned counsel for the petitioner has relied, it has been laid down that a trial Court is competent to impose such condition.
6. The next question which falls for consideration is as to whether there was sufficient material available on record to justify the imposition of this condition. The petitioner in his application for leave to defend the suit had admitted the execution of the promissory note in question. He had also admitted his initial liability to pay Rs.40,000 to the respondent by saying that he had borrowed I pesticides of the value of the said amount from him. His claim of deductions is not supported by any receipt or other proof. 1n these circumstances the contention raised by the learned counsel for the petitioner to the effect that the petitioner had shown a good prima facie case and as such unconditional leave should have been granted to him appears to be unconvincing and devoid of force. I am of the view that the impugned order of conditional leave, in the circumstances of the case, could not be considered as an order in which discretion had been exercised in an injudicious and improper manner and it was rather unkind on the part of the petitioner to complain that the order was harsh and grossly unfavourable to him. It would not be out of place to mention here the remark of the learned counsel for the respondent that it was an appropriate case where leave should have been refused to the petitioner but as leave had been granted the party which could have any grievance against the impugned order was the respondent and not the petitioner.
7. As regards the case of Sh. Muhammad Ramzan, relied upon by the learned counsel for the petitioner, 1 am of the view that it is distinguishable and the facts of the said case are quite different from the facts of the present case. In the said case a suit under Order XXXVII, C.P.C. Was instituted against the defendant but he was not summoned in the manner prescribed under rule 2 inasmuch as summons in Form-4 of Appendix-B had not been issued to him and the trial Court without having heard the parties had passed a mechanical order granting leave to defend the suit subject to the condition that he deposited in Court the amount claimed in suit which .Vas more than one lac of rupees. It was held that issuance of summons in Form-4 of Appendix-B in such case was a condition precedent to confer jurisdiction upon the Courts to consider the grant or refusal of leave to defend the suit and as the said condition had not been fulfilled the entire proceedings before the trial Court were illegal, arbitrary and without jurisdiction. In the present case the position is altogether different The petitioner had been served with summons in Form-4 of Appendix-B and the conditional order for the grant of leave to defend the suit was passed after hearing the parties' counsel. Furthermore, the amount involved in this case is no[ as big as in the said case. As such proceedings before the trial Court in the present case could by no stretch of imagination be considered as illegal and without jurisdiction nor it could be said that the impugned order had been passed in a mechanical way. As such the decision taken in the said case is of no help to the petitioner.
8. In view of the authorities relied upon by the learned counsel for the respondent and the material available on record I am of the considered opinion that the learned trial Court in the present case was competent to grant conditional leave to defend the suit and the imposition of the said condition was perfectly justified. I am also of the opinion that as the impugned order was passed in exercise of discretion its legality could not be interfered with in writ jurisdiction. Reliance in this regard is placed on the case of Khalid Javed & Co. 1988 SCM R 391.
9. It is an established principle of law that writ jurisdiction would bet exercised only if the High Court is satisfied that no other adequate remedy provided by law is available to the petitioner and if the High Court considers that writ petition should not be entertained on account of failure of aggrieved party to avail of another adequate remedy such a decision would not only be entirely legitimate but would indeed be in furtherance of intendment of Article 199 of the Constitution of Islamic Republic of Pakistan. This view was taken by the Supreme Court in Allah Ditta and others v. Malik Ijaz Hussain 1986 SCM R 959. In the resent case remedy of revision against the impugned order was available to the petitioner which he did not exhaust before coming to this Court. This petition, therefore, is not competent.
10. In view of above discussion there is no merit in this writ petition which is dismissed with costs.