1. ' WAJIHUDDIN AHMED, J.---These are two connected petitions. The first of these is apparently by a tenant of one of the four disputed shops and an upper floor' office; constructed in the Hotel Imperial Premises, Queens Road, Karachi, where the disputed shops are claimed to be used as Display Centre for foreign buyers. In turn, the second petition is the petition by the owners of such shops. The common causes for grievance are notices issued by the K.B.C.A., respondent No,2 here, claiming that such structure of shops and office thereon is unauthorised, coining within the cut-line portion (i,e, space reserved for future road widening scheme) and requires to be demolished.
2. These are 24 hours' notices. Upon approach to this Court, ad interim orders were issued and the respondents have put in appearances.
3. ' The petitioner's case is that the allegedly illegally constructed structure in front of the plot has been duly regularized and does not merit to be removed. Reliance is placed on a plan approved under the Sindh People's Local Government Ordinance, 1972. Such plan has been produced but that is conditioned as under:--- "Subject to the condition contained in the Accompanying Letter No,KMC/AC/BP 1056/75/1159, dated 7-4-1975 and the condition mentioned below.
4. ' This approval would be liable to cancellation in case it is found at any later stage that it was obtained by misrepresentation of facts.
5. ' With the condition that structures coming within the cut-line shall be removed without compensation."
6. ' Regarding the reproduced condition, the petitioners maintain that there is no immediate prospect of road widening, if and when such a proposal is taken in hand, necessary acquisition proceedings shall have to be instituted and then alone the petitioners can be called upon to remove the allegedly offending structure. On 9-12-1996 it was stated before this Court from the side of the petitioners that prior to the approved/regularised plan there was an approved plan for the main building. The petitioners were required to produce such plan, which was not produced. On the same date and in the same order, it was observed that if the approved plan was issued on 7-4- 1975, there had to be a completion plan, which too after lapse of 21 years should have materialized.
7. If there was a completion plan, such as well was required to be produced. The same too was not brought on record. What is more, following upon the promulgation of the Sindh Buildings Control Ordinance, 1979. Section 6(1) thereof relevantly postulated as under:- "6. Approval of plan.---(1) No building shall be constructed before the Authority has, in the prescribed manner, approved the plan of such building and granted no-objection certificate for the construction thereof on payment of such fee as may be prescribed: ' Provided that in the case of a building the construction whereof has commenced before coming into force of this Ordinance, the Authority's approval of the plan and no-objection certificate shall be obtained not later than six months after the enforcement of the Ordinance.
8. (Explanation.---The word "construct" will all its variations used in this section and hereafter shall include 'reconstruct' with all its variations and, additions or alterations).
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12. 6 In line with the foregoing, it was for the petitioners to state as to when the building in question was taken in hand for putting up the requisite construction, when was the initial plan submitted for approval, what did the approval letter stipulate and finally when was the construction taken on the level of completion and when the final seal of completion was affixed on the exercise. All these essentials have not been provided, as would have been expected in such a serious case. The only document brought on record, as seen, is the approved plan but that itself was accompanied by a letter and even that letter has not been produced.
13. ' Coming to the controversy itself, it is not disputed that the structure in question falls within the cut-line portion. All that is urged is that the necessary process for acquisition has not been taken in hand but that is not material. It is common knowledge that in the various localities of the city, such as I.I. Chundrigar Road, Frere Road, etc., multi-storeyed buildings are constructed leaving substantial frontage for cut-line purposes. The cut-line portions, we understand, have never been acquired. If the petitioner's logic were to be accepted then the owners of such cut-litre portions could raise make-shift constructions thereon the simplest of pleas that awaiting acquisition they could use their property in a manner suited to themselves. In an expanding modern city such as Karachi the cut-line provisions are of vital importance. Such have to be given effect to in all individual cases and one individual cannot steal a march over another by simply saying that the scheme is itself in a state of fruition and that he would only act when others do likewise or that till such time as the land is his he is free to do with it what he pleases.
14. ' In the circumstances, we asked the learned counsel for the petitioners whether he would be prepared to accept a reasonable period of time, within which we could grant to the petitioners to do the needful. He skirted that question. Constitutional jurisdiction is essentially equitable in nature.
15. No equities call to be protected in this case. The land can remain with the owner petitioners to be used as an open ground or for any other purpose except use as a building constructed thereupon.
16. That alone could be the result of giving effect to the impugned notices and that constitutes no illegality. For such reasons through a short order passed on 17-12-1996 we had dismissed these petitions.
17. Petitions dismissed.
18. 1998.0 L C 961 [Lahore] Before Sheikh Lutfur Rehman, J MUTEEULLAH---Petitioner versus MUHAMMAD JAMSHAID IQBAL---Respondent Civil Revision No,345/BWP Civil Miscellaneous No,1 of 1997/BWP, decided on 25th September, 1997.
19. Civil Procedure Code (V of 1908)- ----O.XXXVII, R.3---Suit for recovery of loan amount--Summary procedure---Trial Court while granting leave to appear and defend suit made it conditional on furnishing Bank guarantee equivalent to loan amount---Validity---Trial Court had rightly exercised discretion in imposing such condition while granting leave to appear and defend suit---Impugned order did not suffer from any illegality or material irregularity, therefore, imposition of condition of Bank guarantee could not be deemed to be perverse or capricious. [p. 963] A Habib Bank Limited, Circle Office, Multan v. Al-Qaim Traders and another 1990 SCM R 686; Mian Rafique Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. And another PLD 1996 SC 749; Messrs Ali Match Industries Ltd. And 3 others v. Industrial Development Bank of Pakistan 1997 SCM R 943; 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 and Haji Karim and another v. Zikar Abdullah 1973 SCM R 100 ref.
20. Ch. M. Amjad Khan for Petitioner.
21. ' Through this revision petition Matee Ullah (petitioner) sought modification of order, dated 15-9- 1997 passed by the learned Additional District Judge-IV, Rahimyar Khan, whereby the petitioner was granted conditional leave to appear and defend the suit for recovery of Rs,60,000 filed against him by Muhammad Jamshaid Iqbal (respondent) on the basis of dishonoured cheque.
2. Briefly stated the facts are that Muhammad Jamshaid Iqbal filed a suit under Order XXXVII of Civil Procedure Code on the basis of a cheque for recovery of Rs, 60,000 allegedly advanced to Matee Ullah, who in turn claimed that the plaintiff had requested him for Rs,60,000 as loan and the cheque was issued ir' this regard. The learned trial Judge while granting leave to appear and defend the suit made it conditional on furnishing bank guarantee in the sum of Rs,60,000.
3. Learned counsel for the petitioner submitted that the condition of giving bank guarantee was illegal and the learned Trial Court had acted with material irregularity. He submitted that the petitioner was not very well off and as such was unable to arrange the bank guarantee, which could only be obtained after depositing the entire amount with the bank. According to him, as the defence set up by the petitioner-defendant raised triable issue, he was entitled to the grant of unconditional leave to defend the suit. In support of his contention that learned counsel for the petitioner relied upon Habib Bank Limited, Circle Office Multan v. Al-Qaim Traders and another (1990 SCM R 686).
4. The contentions of the learned counsel for the petitioner have no merits at all. It was held in Mian Rafique Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. And another (PLD 1996 SC 749), referred before the trial Judge by the plaintiff-respondent's counsel, that the grant of conditional leave was a matter within the discretion of the Court which was to be exercised keeping in view the facts and circumstances of each case. It was further held that if the defence disclosed in the affidavit of the defendant was found to be illusory or lacking bona fides or based on allegations of vague nature without any supporting material, leave could be granted on such terms and conditions which the Court night think fit. Even in the ruling referred before the Trial Court on behalf of the petitioner i,e,, Messrs Ali Match Industries Ltd. And 3 others v. Industrial Development Bank of Pakistan (1997 SCM R 943) it was held that where defence set up at least raised a triable issue leave could be granted conditionally. In both the abovementioned cases leave was granted on furnishing bank guarantees.
5. The case of the petitioner is that the amount was borrowed by the plaintiff-respondent from him and the cheque was issued for this purpose. In this petition for leave to defend the suit, he mentioned that he had asked the plaintiff-respondent to return the cheque but he was told that the cheque had been lost. It is interesting to note that the petitioner allegedly gave the cheque for giving loan to the respondent but the cheque was dishonoured and was not paid by the bank as the petitioner had no money in his account. The petitioner neither filed any suit for cancellation of the cheque nor informed the bank to stop payment. Obviously, he has set up a very weak defence as observed by the trial Judge and in such a case imposition of the condition of Bank guarantee is neither unreasonable nor illegal.
6. In the case of Fine Textile Mills Ltd., Karachi v. Haji Umar (PLD 1963 SC 163) it was held as under:--- "What is more is that even if the defence set up be vague or unsatisfactory or there be a doubt as to its genuineness, leave should not be refused altogether but the defendant should be put on terms either to furnish security or to deposit the amount claimed in Court."
22. ' The abovementioned case was also with regard to cheques which were dishonoured, on presentation for payment. In the said ruling it was further held as under:--- "It is no doubt true that under section 118 of the Negotiable Instruments Act there is an initial presumption that a negotiable instrument is made, drawn, accepted or endorsed for consideration, but this presumption is rebuttable presumption and the onus is on the person denying consideration to allege and prove the same."
23. ' In the instant case, the presumption though rebuttable is that the cheque in question is for consideration and the onus is on the petitioner-defendant to prove lack of consideration. In such a case the imposition of condition cannot be said to be perverse or capricious. This view is further supported by the pronouncements of the Supreme Court in the cases of Messrs Ark Industrial Management Ltd. v. Messrs Habib Bank Limited (PLD 1991 SC 976) and Haji Karim and another v.
24. Zikar Abdullah (1973 SCM R 100).
7. The learned Trial Court has rightly exercised the discretion in imposing the condition while granting leave to appear and defend the suit. The impugned order does not suffer from any illegality or material irregularity and, therefore, the revision petition is not competent. It is dismissed in limine.