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Civil Revision No. 244 of 1983, heard on 28th. March, 1983.

‑‑ O. XXXVII; r. 3‑Leave to defend suit‑Grant of‑Suit under O. XXXVII‑Additional District Judge granting leave to defend suit subject to deposit of amount in dispute in Court within fifteen days‑Petitioner contending Judge having not dwelt upon propriety of condition of deposit of amount‑Petitioner denying liability on basis of cheque‑Additional District Judge not saying anything as to prima facie strength of suit and as to merits of proposed defence Held, order of Additional District Judge not speaking order‑Held further, party to be put on terms either to furnish security or to' deposit amount claimed in Court only where defence vague or unsatisfactory otherwise leave to be granted unconditionally.

Fine Textile Mills Ltd., Karachi v. Haji Umar P L D 1963 S C 163 rel.

A. W. Butt for Petitioner.

Malik Muhammad Rashid Awan for Respondent, .

Date of hearing : 28th March, 1983.

The respondent instituted a suit on 13th November, 1982 against the petitioner under Order XXXV11 of the Civil Procedure Code for the recovery of Rs. 25,000 on the basis of a dishonoured cheque alleged to have been issued by the petitioner to ‑pay oft' the loan raised by him from the respondent, the cognizance of which was taken by the learned Addi tional District Judge, Lahore.

2. The petitioner made an application for leave to defend the suit on various grounds. The leave to defend was granted by .the learned Additional District Judge vide his order dated 7th of January, 1981. The order passed by the learned Additional District Judge runs as, "The application for leave to defend is granted subject to the deposit of the 't amount in dispute in the Court within fifteen days"

3. The learned counsel for the petitioner in this civil revision which has been brought against the order of the learned Additional District Judge has contended that the order passed by the learned Additional District Judge on the face of it is not a speaking order hence the order as passed has. no weight in .law. Next he has maintained that the learned Judge has not dwelt upon the propriety of the condition which he has attached to the leave granting order. Ordinarily in such cases an unconditional order . granting leave is passed and it is only an exception when a condition is attached to a leave granting order, And even where leave to defend is granted conditionally generally the furnishing of security is ordered rather than to deposit the amount in dispute in the Court for which there must exist some reason. The learned counsel .has next urged in elaboration of his case that it was obligatory upon the learned Additional District Judge to have at least gone into the question of initial liability. A condition. can be attached only when there is a prima facie case ‑in favour of a person bringing a suit on a negotiable instrument and the ,proposed defence appears to be unsatisfactory. In the present case it had been denied that the petitioner owed anything to the respondent on the basis of any cheque. Since the order of the learned Additional District Judge is silent on this point, therefore, it cane to be regarded as an order passed in due exercise of the jurisdiction vesting in the learned Judge‑

4. The learned counsel appearing for the respondent has while resisting the revision petition submitted that the order as passed by the learned Additional District Judge is in accordance with law and while granting leave to defend it was within his discretion to attach any condi tion to leave granting order as he deemed lit and the matter appertains to the exercise of discretion, so it cannot be questioned within the scope of section 115, C. P. C.

5. I agree with the learned counsel for the petitioner to the extent that the order as passed by the learned Additional District Judge is not artspeaking order.

6. The best guidance in ‑ such cases can be sought from a Supreme Court decision Fine Textile Mills Ltd, Karachi v. Haji Umar(PLD1963SC 163), in which it has been observed "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, them he is entitled to cave to defend. 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.

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 judgment ii) a suit filed by a specially endorsed writ of summons under Order XIV of the Rules of the Supreme Court, in England. One of such principles laid down by the Court of Appeal in the case of Kodak v. Alpha Film Corpora tion 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."

So it is very clear from the above‑quoted observation that a party is to put on terms either to furnish security or to deposit the amount claimed E in the Court where the defence set up is vague or unsatisfactory or there is‑ any doubt as to its genuineness, otherwise the leave is to be granted unconditionally.

7. Now whether the order as passed by the learned Additional District Judge can be interfered within the scope of section 115, C. P. C. It is sufficient to observe in this case that the learned Additional District Judge has not said anything as to the prima facie strength of the suit as brought and as to the merit of the defence proposed td be offered. He can make the leave granting order as conditional only if he tentatively assesses that the case set up by the defence is vague or unsatisfactory as against the suit as has been observed in the above said decision, therefore, this case cannot be regarded as one in which the jurisdiction has been exercised in a legally becoming manner.

8. The order as passed by the learned Additional District Judge is set aside and the case is remanded to him to pass the order as to the attaching of the condition afresh in the light of the above‑referred Supreme Court decision. Since this petition has succeeded‑oil a legal question, therefore, the parties are left to bear their own costs.

K. M. A Petition allowed.

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