1. ' The applicant filed suit against the respondent under Order 37, rule 2 C.P.C. For recovery of Rs,80,096.60. The respondent filed application for leave to defend, which has been granted unconditionally by order dated 10-12-1989. The said order has been assailed by the applicant on the ground that no reasons have been given for granting leave without any condition.
2. ' Mr. Ali Ahmed Tariq, appearing for the respondent, has stated that the respondent, in his affidavit, had taken several grounds, wherein he challenged the jurisdiction of the Court at Karachi and also a plea was taken that the applicant was paid in excess of the amount due and payable by the respondent.
3. ' The learned counsel for the applicant, on the other hand, has contended that several cheques issued by the respondent were not honoured by his bankeRs, It is contended that while promissory note was being prepared the respondent was informed of the amount due against him which was written on the top of the blank draft of the promissory note. The blank draft was taken away by the respondent to verify the amount payable by him as he disputed the quantum of the amount due.
4. The respondent after verification of the amount due executed the acknowledgment receipt and the promissory note for Rs,75,000 to be due and payable and promising to pay the said amount on demand 'or order. In reply to the above contentions, Mr. Tariq argued that the amount of the Cheques, that were dishonored, were paid frap time to time by the respondent to the applicant and for which receipts were also issued.
5. ' The learned trial Court Judge has granted unconditional leave tom defend with the observations that the respondent/defendant alleges that there was no agreement between the parties and that the amount claimed by the applicant/plaintiff is denied by the respondent and that the respondent has claimed to have made excess payment to the applicant.
6. ' The suit, has been filed for recovery of the amount payable by the respondent on account of sale of pesticide to him. The applicant has filed with the plaint statement of account from 28-6-1986 to 7-11-1987, giving the particulars of invoices, the amounts debited and credited, and the balance outstanding. The respondent has not denied the transaction, but has taken the defence that he had returned pesticides of expired dates, the details whereof have been concealed by the applicant. With regard to cheques issued by him to the applicant it is stated that the post dated cheques used to be issued and after sale of the pesticide, the price thereof was paid by Pay Order or Bank Draft and such of the supply of pesticide that was outdated, cheques were to be returned to the respondent but some of them were not so returned. The respondent, however in his affidavit filed in support of the application for leave to defend has neither given any particulars of the pesticides thus returned, or the cheques, .Or Pay Orders or Bank Drafts, nor has falsified any of the entries in the statement of account filed by the applicant and has set up general and vague defence as stated above. With regard to blank promissory note the applicant has given satisfactory and plausible explanation and it has been asserted that the amount was mentioned therein after verification of the amount due by the respondent.
7. The power vested in Court to grant leave with or without condition under Order XXXVII, Rule 3, C.P.0 is unfettered and no hard and fast rule can be prescribed for exercise of such discretion, but the discretion is to be exercised judicially keeping in view the facts and circumstances of each case and not in arbitrary manner. The defence set up by the respondent cannot be said to be plausible or incontovertible and there appears no justification for granting unconditional leave to defend to the respondent. I, therefore, modify the order dated 10-12-1989 passed by the learned Ist Additional District Judge Karachi (South) to the extent of granting leave without condition and order that the respondent will furnish surety or bank guarantee in the sum equivalent to the amount claimed in the suit to the satisfaction of the trial Court within one month from the date of receipt of this order.
8. ' The observations made herein are tentative in nature and should not affect the decision of the suit in any manner.