Naseem Khan VS Sardar Sher Bahadar Khan

Judqment Sheet

I)IISI trAWA I{ H I GH COURI" A B BO'I']'ABAD I} IiNC FI.

.l U I ) I C I /1 L l ) li t)/ llT l,l 1'; N'l' (llt No.ll4-A/20ltl J_Ut)GM|,NI l)ate of hearinq . ..... ... ...29/ t0/2018.

Pel i/ ioner ... ( Nasee nt Khon) b;, Syetl Shah liu.rui. ,4dvocole

llc.t pontlenl ... (Sordar Sher Bahadur) ... ..

S'/I'I) MUIIAMMAI) A'I"[IOL]E SIIAII. .I

'l'his rcvision pctition by Nasccnt l(han, pctitioncr, is directed against thc order datcd 22.02.201.8 of the learncd Additionai I)istri(-r .|udgc-lV, Abbottabad in suit No.tJ/1 <tf 201.5, under Order XXXVII CPC, n,hcreby, thc lcarnr:d trial Court while allowing lcavc ttl dcf'cnil to the pctitioncr directed him to iurnish sureLy btlnd in the sum of disputcd ;lmounL wil-h t.wtl surcties.

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ln essence, thrt gricvancc ol tlre pcLitioner in the prescttt. revision pctltlon rclatcs to dircction ol ttit: lcarnt:d trial Court t

qua grant of conditional lcavc to dcicnd tlrc suiL filed by respondent for recovery tif one crorc alongwithlB% profit per annum

:l 't'he respondcnt was summoned,

howcver, who failed to appcar befbrc thc CourL despite his personal servicc, as such, hc was proceeded against expurte vidc officc Notc datcd 08.10.2018.

4 Arguments of' lcarned counscl for the petitioner heard and rcctlrd peruscd.

5 perusal of recorcl rn,ould rerrcal that rcspondent has instituted a suit for rccovery of Rupccs one Crore against thet petitiontlr ttnder Order-XXXVII C.P.C.'l'hc pctitioncr appr:arcd bcfore the learned trial Court and applied for Icave to defcnd the suit, which was conlcstcd by the respondent by filing reply thereto IIowcver, conditional leave was granLed to lhc petitioner by the iearned triai Ctltrt. and hrl was directed to furnish surety bond in lhe clispuLcd surll

6 Bcfbre discussing t.hr: qucsLion of' grant oflcavc to defend, involvcd in thc prcscnt casr:, this Court would lil<c Lo rcmind Lhat the purpose of special and separate procedure provided undcr OXXXVII, C.P.(. is to cnsure spccdy and timely disposal of financial nrattcrs, which can be brought bcfort: a (lrtrrrt. cmpowered under the law on thc basis of"l:lill of l')xchangc', 'Promissory Nol.e', 'ltundi', and 'Chcquc' ctc and leave to appcar and dcfcnd thc suit has been made a condition prcccdenl with an obvi<.lus object to curb thc dttlaying tar:tics of a delinquent def'endant, who has no plausibltr dcfence or a triable issue, and also to minimizc thc agonies of a plaintiff. 1'hc proccdure to {lle application for leavc to appcar and delcnd thc sult- ls provided in Order XXXVII llulc ll CI)C, which reads as under:

'3 (1) The Court shall upon applicatton by the defendant give leave to appear and to defend the suit, upon affidavits which disclose such facts as would make it incumbent on the holder to prove consideration, or such other facts

as the Court may deem sufficient to support the application

(2)Leave to defend may be given unconditionally or subject to such terms as to payment into Court giving security, framing and recording issues or otherwise as the Court thinks fit " 'l'lrc Court under the rule ibid has the discretion to grant lcave to dcf'cnd conditionally or unconditionally which depends upon Lhc lacls and circumstances of each case. 'l'hc very plrrposc of thc rule ibid is [o cmpowcr thc (lourt to strike a balancc bctwct:n two situations i.e. where triablc issucs are raiscd/ disclosed by the defendant, then uncontlitional Icavc to def'end is to bc grantcd or whct'c def'cnce is taken by the defendant with thc solc object to gain time, then Court mighl' insist upon some condition. By now iL is alsrl wcll cstablishecl that grant of lcavc is nol a matter of' course or of right, rather the defcndant has to show/disclose a plausible dctentr, whir:h mav givc rise to a triable issue and i[ hc succecds thcn lcave to defend is to bc $rantcd

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unconditionally; plausiblc defence which givcs rise to triable issue must bc cogent, fair, bonafide, reasonable and discklscd upon an a{fidavit. Apart fiom the abovc, Court at thc trmc of determining the factum of plausible defence, has to consider substantial question <lf law, jurisdiction of Court, complex question of' limitation, instrument not propcrly stampcd or not attested by two witncsses or the same is issued without consideration or clcmcnt of' fraud requiring inquiry. Iowever, if plausible defencc is not made out, then leave may be refused and suit be decreed. It is worth mentioning that in procecdings undcr ordcr XXXVII C.P.C, the conduct of thc delendant is vcry much relevant in granting or refusing leave lo appear and defend thc suit.

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() I,'rom the available rcr;ord o{ the case, when this Court examines the dcfencc of petitioner in the instant casc, it transpires thal- there was ccrtain business transaction bctwccn

the ilartics regarding developmcnl of road and plots, which was thoroughly discusscd by thc lcarned trial Court in thc impugncd ordcr and on merits leave to appear and defcnd Lhc srrit was granted subject to furnishing surcty bond.

llowevcr, this Court is ol thc considcrcd viclv that once the delenco put-forth by the pctitioner on affidavit was considcrcd and lcave was granted on merits, then leavc should havc bcen granted without any condition tn view of thc peculiar facl-s and circumstances of' thc instant casc.

I In view of thc lorcgoing discussion, l-his revision petition is acccptcd, the impr-rgncd order of the learned trial Court is modiiied to thc extent that petitioner is entitled for grant rlf unr:onditional leave to dcicnd thc st-tit An nounced. .t K4 Dt.29.l 0.201 8.

/'Nl Salccm'/