1998 M L D 1291

[Lahore]

 

Before Raja Muhammad Khurshid, J

Qazi FAIZ-UR-REHMAN—Petitioner

 versus

 GHULAM AHMED —Respondent

Civil Revision No.  195 of 1997, heard on 25th November, 1997.

Civil Procedure Code (V of 1908)—

—-O.XXXVII, R. 3—Suit for recovery of specified amount in summary jurisdiction—Leave to appear and defend suit granted to defendant on furnishing Bank guarantee—Validity—Discretion of Court must be exercised in each case according to facts of that case—Trial Court would have option either to call upon contesting defendants to furnish Bank guarantee or security to its satisfaction—Two cheques admittedly issued by defendant for specified amount were dishonoured regarding amount in question—Defendant’s claim that he had paid specified amount through receipt, which prima facie looked to be suspicious—Trial Court had exercised its discretion judiciously in calling upon defendant to furnish Bank guarantee in the amount in question—Impugned order passed by Trial Court not suffering from any legal infirmity, did not call for any interference in circumstances.

Abdul Rauf Ghauri v. Mrs. Kishwar Sultana and 4 others 1995 SCMR 925; Fine Textile Mills Ltd. Karachi v. Haji Umar PLD 1963 SC 163 and Khalid Javed & Co. v. Javed Oil Industries 1988 SCMR 391 ref.

Sh. Muhammad Suleman for Petitioner.

Muhammad Ghani for Respondent.

Date of hearing: 25th November, 1997.

JUDGMENT

The petitioner was granted permission for leave to appear and defend a suit filed by the respondent under Order XXXVII, C.P.C. for the recovery of Rs. 3,12,000 vide order dated 29-4-1997 passed by the learned District Judge, Rawalpindi. The recovery of the aforesaid amount was based on two cheques issued by the petitioner in favour of respondent, which were dishonoured.

 

  1. In the present revision petition, the petitioner has challenged the impugned order on the ground that since the payment relating to, the consideration of the cheques had been made to the respondent vide receipt dated 1-10-1996, therefore, the suit was mis-conceived, and as such the condition precedent to contest the suit by filing a Bank Guarantee was not only strenuous but in fact deprived him in a way to contest the suit. He was, however, ready to furnish the security for the amount in dispute instead of Bank Guarantee. Reliance was placed on Abdul Rauf Ghauri v. Mrs. Kishwar Sultana and 4 others reported as 1995 SCMR 925 (Supreme Court of Pakistan).

 

  1. The revision petition is contested by the respondent on the ground that since the cheques issued by the petitioner had been dishonoured and the amount mentioned therein had become due, therefore, the learned trial Court had rightly exercised its discretion to call upon him to furnish the bank guarantee while granting permission to appear and defend the suit. In this context, it was contended that the contention of the petitioner that an amount of Rs. 4,72,312 was paid against receipt dated 1-10-1996 was not believed by the learned trial Judge, whereby it was contended that the cheques were not to be presented to the Bank and those were to be retained as security after the issuance of aforesaid receipt. It was, further contended that since the parties had business relations and admittedly the petitioner was exclusively conducting the business on behalf of respondent as well, therefore, the cheques were issued for the amount due, which was Rs. 3,12,000. However, the petitioner allegedly forged the receipt aforementioned to show that Rs. 3,12,000 were also paid. In fact the aforesaid receipt depicted the payment of profit to the tune of Rs. 1,60,302 but the amount of Rs. 3,12,000 was subsequently forged, which does not bear the signature of respondent even. It was, therefore, contended that the learned trial Court had rightly made the impugned order and the discretion exercised to that effect was not liable to be interfered with in the revisional jurisdiction of this Court. Reliance was placed on Fine Textile Mills Ltd. Karachi v. Haji Umar reported as PLD 1963 Supreme Court 163 and Khalid Javed & Co. v. Javed Oil Industries reported as 1988 SCMR 391.

 

  1. I have considered the foregoing facts and find that discretion is to be exercised in each case according to its facts. Both the options are open for the Court either to call upon the contesting defendant to file the bank guarantee or a security to its satisfaction. In the instant case, the learned Trial Court has exercised the discretion to call upon the petitioner/defendant to furnish the Bank Guarantee as he had looked at the receipt dated 1-10-1996 with suspicion. I would refrain to make any comment regarding the genuineness or otherwise of the aforesaid receipt because that is yet to be settled at the trial as observed by p the learned trial Judge. It is, however, an admitted fact that two cheques for an amount of Rs. 3,12,000 were issued by the petitioner regarding the amount in question but the same were dishonoured. As such repayment of the aforesaid amount is yet to be established at the trial. In such a situation and particularly when the receipt dated 1-10-1996 look to be prima facie suspicious, the learned trial Judge had exercised his discretion judiciously to call upon the petitioner/defendant to furnish bank guarantee in the amount in question. Since the impugned order passed by the learned trial Judge does not suffer from any legal informity, therefore, it does not call for interference in the revisional jurisdiction of this Court. The revision petition being meritless is dismissed. The petitioner is, however, directed to furnish the bank guarantee in pursuance of the impugned order till 16-12-1997.

 

A.A./F-44/L                                                                                         Revision dismissed.