Law: Civil Procedure Code (V of 1908)

Section: O.XXXVII,R.3

Law: Civil Procedure Code (V of 1908)

Section: O.XXXVII,R.3

Civil Procedure Code (V of 1908)-------O. XXXVII, Rr.1, 2 & 3---Suit for recovery of amount on basis of cheque---Application for leave to appear and defend suit---Granting leave subject to furnishing a Bank guarantee---Trial Court accepted application and defendant was allowed to appear and defend suit subject to furnishing of Bank guarantee equivalent to the claim of plaintiff---Defendant had challenged condition imposed in impugned order---Grant of conditional or non-conditional leave having direct nexus with plausibility of defence, ultimate success or failure in the suit, was no consideration for refusal or grant of leave, rather, consideration was that the grounds taken in the application for grant of permission to defend the suit, were plausible and defendant had arguable case---On the face of uri­rebutted assertion of the plaintiff and supported by the documents executed by the defendant from time to time acknowledging his liability to amount claimed against him---Defendant had already received a considerable amount through an agreement to sell---When possession of the land was still with him along with the possession of house handed over to him through Jirga (agreement), which was also leased out by him on account of demarcation of land, which had not been done by any default of either party, it could not be said that the conditions of Jirga (agreement) had not been fulfilled---Exercise of discretion by the Trial Court in granting leave to appear and defend the suit on condition of furnishing Bank guarantee, did not suffer from any infirmity, in the circumstances of the case. Mian Rafique Segal and others v. Bank of Credit and Commerce International (Overseas) Limited and others PLD 1996 SC 749 rel. Qausain Faisal Mufti for Petitioner. Miss Robina Shaheen for Respondent. Date of hearing: 18th April, 2008. JUDGMENT SYED QALB-I-HASSAN, J.--- Brief facts of the case are that the respondent filed a suit for recovery of Rs.93,00,000 as principal amount along with markup at the rate of 12 % under Order XXXVII of C.P.C. against the petitioner on the basis of cheque dated 7-8-2006 drawn on Muslim Commercial Bank, G.T. Road, Rawat, District Islamabad which…

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