Law: Civil Procedure Code (V of 1908)

Section: 3

(a) Civil Procedure Code (V of 1908),   O. XXXVII, r.3 Leave to defend suit granted conditional on furnishing security. Whether or when Appellate Court would interfere with condition as to security.   Before an Appellate Court would interfere with the order of the trial Court giving leave to defendant to defend a suit under O. XXXV II, r. 3, C. P. C. conditional on the defendants furnishing security it should be shown that the order was under the circum stances unjust, arbitrary or unreasonable or that it violated some principle which should govern the exercise of discretion.   It is not enough that the Appellate Court itself would not have made the order conditional.   If the defendant had prima facie a good case he should not be deprived of an opportunity of defence merely because he was, for some reason, unable to furnish security. If on the other hand the material on the record disclosed only an arguable case it would be quite a proper exercise of a discretion to call for security before leave to defend was granted.   Where a suit under O. XXXVII, C. P. C. included an item of claim based on a sight draft of which the defendant was neither the drawer nor the acceptor, the suit so far as related to the item covered by the draft was not maintainable under O. XXXVII, and the Appellate Court set aside the order of security so far as it related to the sight draft.   (b) Negotiable Instruments Act (XXVI of 1881),   S. 7-A person becomes acceptor only when he signs bill of exchange as token of assent-Sight draft is a bill of exchange.   Dates of hearing : 4th and 5th November 1958.   JUDGMENT   KAIKAUS, J.-This is an appeal against the order of Muhammad Bakhsh Memon, J. awarding to the respondent the International. Express Co. Ltd., a decree for Rs. 45,326-7-8, which sum represents a conversion into Pakistani rupees of 4882-5-10, against the appellant M. A. Shaikh, a person carrying on business in the name of the Continental Syndicate of Trade. The Continental Syndicate of Trade is also a party to the proceedings but as it is only a name under which M. A. Shaikh has been carrying on business reference in this…