' This judgment will decide Civil Revisions Nos.325, 326, 327 and 328 of 1996, as the same arise out of common facts.
2. In all these revision petitions, respondent filed suits for recovery of money on the basis of cheques under Order 37, Rules 1 and 2 of C.P.C. Petitioner applied for leave to appear and defend which was granted by the learned Additional District Judge vide impugned order, dated 16-6-1996.
The permission was granted subject to furnishing of bank guarantee. Against the condition for imposition of bank guarantee, the present revision petitions have been filed.
3. Learned counsel for the petitioner submitted that the petitioner was an agent of the respondent and that the cheques were issued in anticipation of liability but on verification of ledger of the respondent, it was found that the respondent had charged interest on the principal amount which the respondent could not charge under the IATA Rules and Regulations and therefore, payment was not released as it was not due. Learned counsel for the petitioner submitted that the petitioner was prepared to furnish simple security and in terms of the order of this Court, security had already been furnished to the satisfaction of the learned Additional District Judge.
4. In reply, it was argued that imposition of condition was discretion of the Trial Court which having been exercised against the petitioner could not be interfered with in revisional jurisdiction.
Reference was made to certain cases on the banking side to argue that once the condition of guarantee had been imposed for allowing defence, the same could not be ordinarily interfered with.
5. Under Order 37, Rules 2 and 3 of C.P.C., in a summary suit, if an application for leave to appear and defend is filed and the defendant discloses a plausible defence or triable issues, the leave has to be granted. Even if the defence raised is illusory, leave cannot be refused and at best, some conditions can be imposed. Reference can be made to Fine Textile Mills Ltd. v. Haji Umar (PLD 1963 SC 163).
6. In ordinary cases, the condition of bank guarantee cannot be imposed unless and until it is shown that the defendant had delayed the case and that the intention was only to gain time and avoid discharge of liability. If the facts do not give impression from the record that there was any motive of delay and that conduct of the defendant was not objectionable, then possibly condition cannot be imposed. Reference can be made to Abdul Karim Jaffarani v. United Bank Limited and 2 others (1984 SCM R 568).
7. In this case, the defence was that the cheques were issued in anticipation of liability but since the ledger revealed that the interest had been charged which the respondent could not recover under the relevant rules, therefore, there was no right to receive amount against the cheques. This is itself was a question which could be resolved after recording evidence. It was not a case in which cheques were bounced because of non-availability of funds but payments were stopped under instructions of the executants which of course, was for the reasons referred to hereinabove. It is thus, a situation where liability of the petitioner has been challenged and right to receive the amount against cheques has been denied. It is also a case in which the plea is that the cheques were issued in good faith and on the disclosure of certain facts which revealed that there was no liability, payment was stopped. This intricate question need be examined through evidence. It will thus, not be a situation in which one can assume that there were no triable issues or plausible defence. As a matter of fact, leave should have been granted unconditionally and at best, simple security could have been obtained to secure interest of the respondent.
8. As regards the objection that discretion could not be interfered with in revisional jurisdiction, suffice it to observe that if the discretion has been exercised fancifully, capriciously or arbitrarily, the revisional Court is not denuded of its power to make interference. Reference can be made to Shahzada Muhammad Umar Beg v. Sultan Mehmood (PLD 1970 SC 139). In this case, as noted supra, the learned Additional District Judge did not exercise his discretion judicially and instead, the order is manifestly whimsical and arbitrary.
9. It is also observed that in terms of the interim order passed by this Court, the petitioner has already furnished security to protect the amount in four suits. This is evidence of bona fides of the petitioner. Respondent is fully protected and there is no need to issue direction for furnishing of Bank guarantee, as asking for bank guarantee will be nothing but to withdraw the permission for leave to appear and defend the suit-which was granted by the Court. Bank guarantee is issued on deposit of amount which will be equivalent to the guarantee amount. Such a condition need not be imposed in the present circumstances of the case.
10. For the reasons above, this revision is partly allowed and order of the learned Additional District Judge to the extent to imposition of bank guarantee is set aside.
11. Any observation made hereinabove is only meant for the purposes of disposal of this revision and same will not influence or prejudice the Court below in the decision of the main case, which of course will be decided on merit and on the basis of evidence. The main suit shall also be decided within four months, with intimation to Additional Registrar of this Court.