This order shall dispose of R.FA. No.32 of 1991 and R.FA. No.33 of 1991 as common questions of law are involved. Appellant in both the appeals is the same whereas the respondent in R.FA. No.32 of 1991 is Abdur Rehman and in R.FA. No.33 of 1991 respondent is Muhammad Shafi. The orders of the learned trial Court are of the same data and almost of the same wording.
2. This appeal is directed against the judgment dated 18-7-1991 passed by the learned Additional District Judge, Bahawalpur, whereby he decreed respondent's suit for a sum of Rs.25,000 under Order XXXVII, Rules 1 and 2, C.P.C. In Civil Suit No.36 of 1990.
3. The brief facts leading to the filing of the above-noted appeal are that respondent filed the afore-referred suit under Order XXXVII, C.P.C. On a promissory note for the recovery of Rs.25,000.
Upon service of summons the appellant applied for leave to defend. On 18-3-1991, application for leave to defend was accepted subject to furnishing bank guarantee to the tune of Rs.10,000 by 14- 4-1991. By 14-4-1991, the appellant did not furnish the bank guarantee and the learned trial Court recalled the permission to defend the suit and the case was fixed for evidence of the plaintiff for 25-4-1991. On this date, the respondent could not produce any evidence and the case was adjourned to 20-5-1991. The case was thereafter adjourned four times i.e. On 20-5-1991, 10-6-1991, 11-7-1991 and 25-7-1991 to await the judgment of the High Court as it was submitted that the order,, dated 14-4-1991 directing furnishing of bank guarantee had been challenged through a Civil Revision. On 4-7-1991, statement of the respondent was recorded and his evidence was closed. On 18-7-1991, it was brought to the notice of the learned trial Court that the Civil Revision filed against the afore-referred order has been dismissed for non-prosecution.
The learned trial Court decreed the respondent's suit observing that as the appellant had been granted leave to defend -on condition of furnishing bank guarantee to the tune of Rs.10,000 by 14- 4-1991 and as he had not complied with the said conditional order and as the Civil Revision filed against the order of furnishing bank guarantee had been dismissed for non-prosecution and since there was no rebuttal of respondent's statement, the suit filed by him had to be decreed.
4. In support of this appeal, the learned counsel for the appellant has raised the following points:-- -
(i) That the appellant has been condemned unheard and the impugned order is violative of the principle of audi alteram partem;
(ii) that the appellant's Civil Revision No. 121 of 1991 against the order 14--3-1991 was pending decision, C.M. No.1 of 1991 had been dismissed for non-prosecution whereupon appellant filed C.M.
No.2 of 1991 for restoration of the same. That a notice had been issued in the said C.M. And an injunctive order dated 22-5-1991 had been passed in the main Civil Revision directing the learned trial Court not to pass final order. The learned trial Court therefore could not have passed the impugned order.
Learned counsel relied on 1980 CLC 1185 (Nazim v. M/s. Habib Bank Ltd., Karachi) and 1992 CLC 1705 (Muhammad Nasir v. Muhammad Alam) to contend that the leave to defend a suit under Order XXXVII has to be granted unconditionally.
5. The learned counsel for the respondent has defended the impugned judgment and has submitted as follows: --
(i) That the order granting leave to defend suit was conditional and as the appellant had failed to comply with the condition stipulated therein, the learned trial Court had very rightly proceeded against the appellant and decreed the suit;
(ii) that the dismissal of appellant's Civil Revision against the order of deposit of bank guarantee dated 18-3-1991 would operate as res judicata and the appellant cannot challenge the same which has attained finality.
The learned counsel relied on 1989 MLD 171 (Muhammad Anwar v. Hoechst Pharmaceuticals Pakistan Ltd.), 1983 SCMR 643 (Ch. Altaf Hussain and others v. Mirza Azam Beg) and PLD 1993 Lah.
339 (Muhammad Yaqoob v. Mst. Azra Parveen and another) to submit that having failed to avail of the opportunity granted by the learned trial Court by way of leave to defend the suit, the appellant lacks bona fides to merit any indulgence in the instant appeal.
6. I have heard learned counsel for the parties and have also perused the record.
7. I have seen the order passed in C.M. 1 of 1991 in Civil Revision No.121 of 1991 moved by the petitioner. On 22-5-1991 this Court, while admitting the main Civil Revision (C.R. 121 of 1991) directed as follows: --- "Meanwhile final order shall not be announced in the case by the learned trial Court subject to notice."
On 30-6-1991, as nobody had appeared for the applicant/petitioner, C.M. No.1 of 1991 was dismissed for non-prosecution. Thus, on 18-7-1991, learned Additional District Judge passed the final order decreeing respondent's suit as the afore-referred injunctive order did not exist. Argument of the learned counsel for the petitioner that the trial Judge could not pass the decree in view of the stay order, dated 22-5-1991 has no force. There has been no violation of the principle of audi alteram partem. The petitioner was afforded an opportunity to defend but leave to defend was made subject to his furnishing bank guarantee to the tune of Rs.10,000. The petitioner having failed to comply with the said condition, cannot claim any relief and the imposition of condition was well within the discretion of the learned trial Court as held in Sheikh Abdul Majeed v. United Bank Ltd.
1984 SCMR 1434 wherein it was observed as follows: --- "The imposition of condition is within the discretion of the trial Court and in the circumstances of the case we find no illegality in the exercise of that discretion. No case is made out for interference.
The petition is accordingly dismissed."
This view was followed by yet another judgment reported in Khalid Javed & Company v. Javed Oil Industries (Registered) 1988 CLC 53, Hussain v. Rajab Ali 1981 CLC 1 and Muhammad Anwar v.
Hoechst Pharmaceuticals Pakistan Limited 1989 MLD 171. In Nazim v. M/s. Habib Bank Ltd., Karachi 1980 CLC 1185 the Court did grant leave to defend the suit unconditionally but the dictum laid down was that this unconditional leave shall be granted only if the defendant had a plausible case based on averments of fact or law contained in his defence. The defendant in that case had placed on record certain documents which made his case prima facie plausible. In the instant case, the petitioner in his written statement before the trial Court had merely denied having executed the promissory note and has attributed the filing of suit by the respondent to some civil litigation pending between the petitioner and one Abdul Salam (brother-in-law of Muhammad Shafi). The petitioner is a close relation of the respondent. It does not appeal to common sense that the respondent would file, a suit under Order XXXVII for the recovery of Rs.25,000 merely because of some litigation pending between the petitioner and one Abdul Salam. The defence, therefore, is not plausible and the learned trial Court had rightly granted leave with the condition for furnishing bank guarantee.
8. For what has been discussed above, there is no merit in both the appeals which are hereby dismissed.