The respondent-company filed a suit against the petitioners for the recovery of an amount of Rs.1,00,000. The case of the plaintiff as set up in the plaint was that petitioner No.1 was employed as Manager in the Company and was posted at Karachi. When he took over the charge there were 3,618 pair of shoes in the stock of the value of Rs.3,46,825 whereas an amount of Rs.6,30,193.32 was outstanding against the customers of the' Company. This was so mentioned in the charge report which was prepared on 17-8-1988. Subsequently according to the plaintiff a shortage of certain amount was detected, th6refore, on 6-4-1989 a charge-sheet was issued to petitioner No.1 that an amount of Rs.2,45,752.52 was .Missing for which he was held responsible. Petitioner No.1 submitted the reply to this charge-sheet on 7-4-1989 in which he pointed out that certain amounts were recoverable from the customers. A letter was written by petitioner No.1 to petitioner No.2 who is father who issued post-dated cheque for an amount of Rs.1,00,000 as also a cheque of Rs.75,000 as a security for payment of the said amount. The cheque of Rs.1,00,000 according to the plaintiff was dishonoured, therefore, the suit was filed for the recovery of the said amount whereas the other cheque of Rs.75,000 has to be presented for payment on the date given on the cheque which has not yet reached. Petitioner No.3 is father-in-law of petitioner No.1 who according to the plaintiff had executed an Indemnity Bond at the time of employment of petitioner No.1 to indemnify the company-plaintiff for any loss if caused by petitioner No.1. It is in this manner that the suit had been filed against all the petitioners.
2. The petitioners filed three separate applications for grant of leave to appear and defend. From all the three applications if read as a whole it emerges that their case was that since petitioner No.1 was taken into custody by the police it was then that the reply of the charge-sheet was obtained from petitioner No.1 as also the letter written by petitioner No.1 to his father i.e. Petitioner No.2 who was under duress and was compelled to issue cheques so that petitioner No may be released from the police custody and lie may not be tried on the criminal side. Their case was that it was not a case of embezzlement but was a simple case where certain amounts were recoverable from the customers to whom the shoes were supplied on credit. The learned trial Court through order dated 13-2-1990 granted them leave to appear and defend subject to the condition of furnishing bank guarantee which order has been assailed in this revision petition.
3. I have heard learned counsel for both the parties. It is clear from the case as set up by the plaintiff himself that prima facie no consideration passed and the amount of Rs.1,00,000 according to the plaintiff's case was not advanced to petitioner No.2 as loan. The circumstances under which these post-dated cheques were issued and the allegations made against petitioner No.1 were such that substantial question of facts and law had been raised in the application for leave to appear and defend on which various issues have been framed including the issue whether they were obtained through coercion. In my view the learned trial Court acted arbitrarily in attaching the condition of furnishing bank guarantee which amounts to burdening the petitioners with the sued amount before full trial of the case and affording them opportunity to prove their case. It was a case where the requirements of justice would have been satisfied by asking the petitioners to furnish personal security. The learned trial Court having acted highly arbitrarily in exercise of discretionary jurisdiction, therefore, it is a case where the trial Court acted with material irregularity and illegality.
4. The revision petition is accepted. The order dated 13-2-1990 passed by the learned trial Court is set aside. The petitioners arse hereby granted leave to appear and defend the suit on their furnishing security to the satisfaction of the learned trial Court on or before 15-5-1990: The parties are left to bear their own costs.