The respondent filed a suit under Order XXXVII, C.P.C. For recovery of Rs.16,000 on the basis of pronote dated 19-1-1982. The appellant appeared and moved an application for leave to appear and defend the suit. The same was granted but subject to furnishing of bank guarantee. The appellant could not - furnish the same, therefore, the suit was decreed vide judgment dated 24-7- 1984, which has been assailed through the present appeal, which was admitted to hearing and notice was issued to the respondent, who in spite of service opted to remain absent, therefore, he has been proceeded ex parte.
2. The learned counsel for the appellant argued that the appellant made application for leave to appear and defend the suit. It was pleaded therein that Mst. Akbar Bibi his daughter-in-law i.e. Wife of his son went to the house of her father and son of the appellant filed a suit for restitution of conjugal rights against the said Mst. Akbar Bibi and during the pendency of the suit Yousaf Nadeem proposed that in case appellant executed a pronote that his son would keep his wife happy then Mst. Akbar Bibi would be sent back to the house of her husband. The appellant in order to show his bona fide put thumb-impression on the pronote. The said Akbar Bibi lived with her husband for 15 days and again went back to the house of her father and ultimately the dispute reached to the stage of divorce. The appellant thereafter proceeded to file a suit for cancellation of the pronote against Abdul Hamid and Yousaf Nadeem, who appeared and stated that they did not get any pronote executed from the appellant and suit was accordingly disposed of. The appellant alongwith the application had appended the copy of the plaint as well as the last order. It is submitted that these facts disclosed a plausible defence, therefore, the leave should have been granted without any condition and in any case the condition of furnishing bank guarantee was too harsh.. It is added that the appellant immediately thereafter moved application for review of the leave grant order, dated 25-6-1984. The trial Court was apprised that he is plying a Donkey Cart to earn his livelihood and it was not possible for him to obtain bank guarantee. The application was dismissed and the suit was decreed.
3. I have given my anxious consideration to the arguments of the learned counsel for the appellant and gone through the record. The plea of the appellant that he was made to put his thumb- impression on a blank pronote form, prima facie, is supported by copy of plaint in the suit titled "Khair Din v. Abdul Hameed etc. ", which was dismissed as infructuous by the Civil Court vide judgment dated 14-3-1984. Abdul Hameed, defendant No. 1 in that suit, is the real brother of the respondent in the present appeal. This way the appellant has, a plausible defence, therefore, should have been granted leave to appear and defend at the most subject to furnishing of security. In this behalf, reference can be made to Fine Textile Mills Ltd., Karachi v. Haji Umar PLD 1963 SC 163,' Messrs ARK Industrial Management Ltd. v. Messrs Habib Bank Limited PLD 1991 SC 976, Muhammad Anwar v. Hoechst Pharmaceuticals Pakistan (Pvt.) Ltd. And others 1989 M LD 171, Imamuddin v. Abdul Rauf 1986 M LD 357; Muslim Commercial Bank Ltd. v. Tayyab Sharif 1975 SCM R 393 and M/s. Bank of Oman Ltd. v. East Asia Trading Company Ltd. And 4 others 1987 CLC 288.
The trial Court failed to appreciate that appellant, who is an illiterate person, does not maintain a bank account and earns his livelihood from donkey cart, could trot conceive of securing bank guarantee. It was not possible for the appellant to comply with the condition. The condition should have been imposed keeping in view the capacity of the appellant otherwise it amounted to dismissal of his application for leave to appear and defend. The Legislature never meant technical knock outs and this was not the purpose of law. If looked from this r angle the trial Court did not exercise its discretion judiciously and properly.
4. The upshot of the above discussion is that the impugned judgment dated 24-7-1984 is set aside by accepting this appeal. The result is that the application for leave to appear and defend is allowed subject to appellant furnishing security by 15-12-1995 to the satisfaction of the trial Court. In case security is not furnished by the said date, the application for leave to appear and defend the suit shall stand dismissed. No order as to costs.