ZIA PERVAIZ, J.--- Heard the learned counsel. Mr. Muhammad Sharif, Advocate for the defendant in support of the application has referred to the words "On account of B.C.", appearing in the promissory note. He has also referred to some receipts of various dates bearing the signatures of plaintiff No. 2 alongwith an agreement dated the 1st day of April, 2000 alleged to have been executed between the parties in addition to others. After going through the same Mr. Muhammad Sharif, learned counsel for the defendant has stated that a plausible case for grant of leave to defend the suit has been made out. In support of his contention he has placed reliance on the case of Fine Textile Mills Ltd., Karachi v. Haji Umar (1963 S.C. 163) wherein the plausible defence has been considered as follows:-
2. "In a suit of this nature where the defendant discloses upon his affidavits facts which may constitute a plausible defence or even show that there is some substantial question of fact or law which needs to be tried or investigated into, then he is entitled to leave to defend. What is more is that even if the defence set up by 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.
3. The principles upon which the provisions of Order XXXVII of the Code of Civil Procedure should be applied are not dissimilar to the principles which govern the exercise of the summary power of giving liberty to sign final judgments in a suit filed by a specially endorsed writ of summons under Order XIV of the Rules of the Supreme Court in England. One of which principles laid down by the Court of Appeal in the case of Kodak v. Alpha Film Corporation (1) was that at the stage when leave to defend is sought "the Judge is not to try the action; he is to see that there is a bona fide allegation of a triable issue, which is not illusory; he need not be satisfied that the defence will succeed; it is enough that such a plausible defence is verified by affidavit."
4. Reliance has also been placed on the case of Messrs Kohinoor Textile Mills Ltd. v. Messrs Gharo Textile Mills Ltd. (PLD 1986 Karachi 157(2)), lying down the parameters of tenable defence as opposed to a shame defence and Abdul Karim Jaffarni v. United Bank Ltd. And 2 others (1984 S.C.M.R. 568), wherein the case-law has been discussed in detail and the principles are laid down by the Hon'ble Supreme Court as follows:-
5. "The review of the cases, therefore, reveals that no hard and fast rule can be laid down for determining the question as to how the discretion vesting in the Court to subject the order for grant of leave to defend to conditions, ought to be exercised as this question depends on the facts and circumstances of each case. It would be improper to lay down a rule or thumb for the exercise of power in matter of discretion vesting in a Court, when even the statute has left it unfettered.
However, we would point out that in order to correctly exercise the discretion vesting in a Court under the provisions in question, it is necessary to examine-the scope and object underlying such provisions providing for special procedure of this kind. In view of the legislative history of these provisions, the overall object envisaged by the Legislature was to provide for expeditious disposal litigation involving commercial transactions of a particular nature by a summary procedure so that the defendant does not have the means open to exploitation in the ordinary procedure for trial of suits to prolong the litigation and prevent the plaintiff from obtaining an early decision by raising untenable and frivolous defences. It is in .This context that the discretion to impose conditions is to be exercised. If, therefore, the Court is of the opinion that the defendant is trying to prolong the litigation and impending a speedy trial, although on the allegations made in the application a triable issue has been raised then the Court would be justified to impose conditions. But, as already pointed out, it will be improper exercise, of discretion to impose conditions simply because, at the leave grating stage the defendant is unable to adduce his evidence on the pleas raised in his defence. The proper stage for substantiating his defence by evidence would be at the trial subsequently."
6. Mr. Mustafa Lakhani, learned counsel for the plaintiff has vehemently opposed the application on the ground that there is no plausible defence, initially learned counsel argued that the matter pertained to a different transaction arising out a loan. However, on being pointed out that the words "on account of B.C." do appear in the promissory note and the promissory note does not pertain to a simple transaction of a loan. Learned counsel while opposing the application stated that in case of grant of leave defendant be put to terms as to security for recovery of the amount.
On consideration of the statements made in the plaint and the affidavit the details whereof are not being reproduced and mentioned to avoid any prejudice to either of the party at a latter stage of the proceedings. There is sufficient material on record to substantiate that there exist a plausible defence in this suit. Defendant has attached photo-copies of receipts acknowledging payment of Rs.8,55,495/- which is also supported by his affidavit. Leave to defend is allowed to the defendant subject to furnishing of surety in the sum of Rs.4,00,000/- to the satisfaction of the Nazir of this Court within a period of four weeks.