2010 Y L R 2596
[Quetta]
Before Mrs. Syeda Tahira Safdar, J
ABDUL KARIM MENGAL ---Petitioner
Versus
SULTAN BADSHAH ---Respondent
Civil Revision No.160 of 2007, decided on 7th December, 2009.
(a) Civil Procedure Code (V of 1908) ---
----O.XXXVII, Rr.2, 3, O.XLIII, R.1, Ss.104 & 115 ---Suit for recovery of amount ---
Application seeking leave t o defend suit was granted with condition ---Revision ---
Maintainability ---Defendant raised objection with regard to jurisdiction of the court,
regarding condition to furnish surety to the tune of amount involved in the suit ---Objection so
raised by defendan t was rejected by the Trial Court ---Plaintiff had contended that revision
petition filed by (he defendant was not competent as High Court had no jurisdiction to
exercise its revisional jurisdiction in respect of order made under O.XXXVII, R.3, C.P.C. ---
Counsel for the plaintiff had failed to elaborate his objection so raised ---Held, High Court
under S.115, C.P.C. could call for record of any case which had been decided by any court
subordinate to it and in which no appeal lay ---In the present case, suit fil ed by the plaintiff
was not decided by the Trial Court, rather interlocutory orders had been made during course
of trial ---Section 104, C.P.C. and O.XLIII, R.1, C.P.C. had specified the orders against which
appeal lay and orders made under O.XXXVII, R.3, C .P.C. were not included therein; it could
safely be presumed, in circumstances, that orders made under O.XXXVII, R.3, C.P.C. were
not appealable and orders of such nature could be challenged/questioned before the High
Court in its revisional jurisdiction ---Revision petition filed by the defendant, in
circumstances, was very much competent.
(b) Civil Procedure Code (V of 1908) ---
----O. XXXVII, Rr.2 & 3 ---Suit for recovery of amount ---Application seeking leave to
defend suit ---Order for furnishing surety for suit amount ---Leave to defend suit was allowed
to the defendant with direction to furnish reliable security for suit amount ---Defendant was
aggrieved of the condition/direction furnishing of surety ---Defendant also filed application
seeking redu ction of security and modification of the order to that extent ---Trial Court had
declined to accept said objections/prayers made by the defendant --Discretion had been given
to the Trial Court under O.XXXVII, R.3(2), C.P.C., either to grant leave to defend suit
unconditionally or subject to some terms ---Giving security was one of the same terms, to that
extent the Trial Court had the power to call for deposit of security in the matter and there was
no illegality to that extent in the impugned orders passed b y the Trial Court ---Contention of
defendant was that there was no justification under the law for imposing the condition of
furnishing reliable security; and that court had mis -exercised its authority by granting leave
conditionally ---Defendant was not spe cific in his contentions and he had failed to point out
any illegality or irregularity in exercise of discretion by the Trial Court and to point out any
illegality in order of the Trial Court whereby application made by defendant for reduction of
surety am ount was rejected ---Trial Court had exercised its discretion properly ---Defendant
having completely failed to make out any case in his favour, revision petition was dismissed.
Syed Ayaz Zahoor for Petitioner.
Muhammad Qahir Shah for Respondent.
Date of hearing: 8th October, 2009.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---The petitioner has filed instant petition seeking
revision of orders made on 16 -11-2006, 22 -2-2007 and 8 -5-2007 by Additional District Judge
IV, Quetta. It is his con tention that respondent/plaintiff has filed a suit for recovery of amount
of Rs.80,00,000 allegedly outstanding against the appellant/defendant after settlement of
account in respect of some partnership business, which comes to an end after settlement of
the accounts. After institution of suit notice as provided under Order XXXVII, Rule 3,
C.P.C. was issued to him, whereupon he filed application seeking leave to defend the suit,
thereby contesting the claim of respondent/plaintiff on merits and also raised objection in
respect of jurisdiction of the court. But the trial Court after hearing the parties rejected the
application in respect of jurisdiction through order made on 16 -11-2006. Thereafter, the case
was heard, while leave to defend the suit was grant ed to him through order made on 22 -2-
2007, but with condition to furnish surety to the tune of amount involved in the suit. The
application made for reduction of surety amount was also rejected through order made on 8 -
5-2007.
Feeling aggrieved of these three orders the petitioner preferred present petition, while prayed
for setting aside of the orders, further prayed that it be declared that the trial Court has no
jurisdiction in the matter, thus the suit be also dismissed on grounds that the orders are illegal,
improper and bad in' eyes of law, facts are not appreciated properly.
Further no discretion vests in the court to grant leave conditionally or unconditionally, rather
discretions to be exercised properly and judiciously. The court has mis -exercised its
authority. Furthermore, as the cheque in question was issued and delivered in Kalat,
therefore, Courts at Quetta have no territorial jurisdiction in the matter, the trial Court has
arrived at a wrong decision.
Parties through counsel are hea rd, while record is perused. The learned counsel for the
petitioner has contended that a report was made about lost of the cheque which was produced
by the respondent before the bank, which establish his contention. Further, the cheque was
issued on 11 -3-2003, but the suit was filed after lapse of several year in 2006, which showed
the mala fide intention of the respondent/plaintiff. Thus in view of the same suit was hit by
Article 62 of Limitation Act. Moreover, as the transaction was not held at Quetta, r ather
cheque was issued at Kalat and also delivered at Kalat, as such court at Quetta has no
jurisdiction. In reply it is contended by the learned counsel for the respondent that present
petition is filed beyond period of limitation which is 90 days, rathe r first order was made on
16-11-2006, while present revision petition is filed on 14 -5-2007, thus time barred, further no
application is filed by the petitioner seeking condonation of delay. Furthermore, this court has
no jurisdiction to exercise its revis ional power in respect of orders made under Order
XXXVII, Rule 3, C.F.C. Further, unconditional leave to defend the suit is not in conformity
with the relevant provision of law.
The perusal of record reveals that the suit filed by the respondent/plaint iff was under Order
XXXVII, Rule 2, C.P.C. for recovery of Rs.80,00,000 along with mark up and interest at
prevailing bank rate, wherein the respondent/plaintiff asserted existence of partnership
business between him and petitioner/defendant, while in 2003 settlement of accounts were
made between them and it was found that an amount of Rs.80,00,000 was outstanding against
the petitioner/defendant, as the partnership comes to an end thereafter, the petitioner/
defendant issued a cheque bearing No.26919267 da ted 7 -8-2003 pertaining to Muslim
Commercial Bank, Kalat Branch to him, when he tried to encash the same, which was
dishonoured with remarks "Non -availability of funds/amounts". The situation was brought
into notice of petitioner/defendant who sought time, but thereafter, failed to make the
payment despite repeated 'requests. Thereafter, coming into knowledge that the petitioner/
defendant used to defraud and cheat the people by getting the amount and his refusal for
payment he make efforts for registration of a case against him, but due to influence of the
petitioner/defendant case was not registered at relevant time by the police rather he
(respondent) was involved in a false criminal case by the petitioner/defendant, which was
tried by Judicial Magistrate -I, Quetta, but through judgment made on 1 -8-2006 he was
acquitted of the charge. It is further his contention that on direction of higher authorities
F.I.R. was lodged against the petitioner/defendant on 14 -6-2006, the proceedings in same
respect are pend ing. Meanwhile he filed present suit for recovery of the amount.
It is further apparent from record that on notice the petitioner/defendant filed an application
seeking 1eave to defend the suit on grounds that the court has no territorial jurisdiction in the
matter, while suit is filed beyond period of limitation, thus liable to be dismissed. While on
merits he denied existence of partnership business between them, he further denied any
settlement of accounts. It is his contention that he had friendly t erms with the
respondent/plaintiff, who being in short of money requested for some loan from him, which
was refused, on the same the respondent/plaintiff had stolen his cheque book with ledger
registers, which were lying with the Munshi, duly signed for pu rpose of drawing amount to
make payment to the employees/labourers. As he was not in knowledge of lost or stole of
cheque book he informed Tehsildar Sohrab about the same on 3 -4-2003, whereby report was
entered in Roz -Namcha. While on same date he also app roached the Bank Authorities filed
application, thereby informed them about lost of cheque and make request for stop of
payment. Further, the respondent/plaintiff is involved in several criminal cases as he had
committed forgery. While the criminal case fi led against him by the respondent/plaintiff is
pending before the court and not yet decided.
The learned trial Court on first instance decided the objection raised in respect of jurisdiction
of the court through order made on 16 -11-2006, whereby held t hat as the parties resided at
Quetta, having their registered firms at Quetta, while the cheque in question though pertains
to MCB Kalat Branch, but deposited at MCB Mechongy Road Branch Quetta. Assuming the
jurisdiction rejected the application. Before to uching the merits of this order, it is to be noted
that the order was made on 16 -11-2006, while present revision petition has been filed on 14 -
5-2007, while as per section 115 C.P.C. the provided period for filing a petition for revision
of an order is 90 days. Surely present petition is filed beyond, provided period, to the extent
of this order, thus not maintainable to this extent.
During course of arguments it is contended by the learned counsel for the respondent/plaintiff
that present revision peti tion is not competent as this court has no jurisdiction to exercise its
revisional jurisdiction in respect of order made under Order, XXXVII, Rule 3, C.P.C. Though
the learned counsel raised this objection, but he has failed to elaborate his objection so r aised.
As per section 115 C.P.C. this court may call for record of any case which has been decided
by any court subordinate to it and in which no appeal lies. In present case the suit filed by the
respondent/ plaintiff is not decided by the trial Court, ra ther interlocutory orders have been
made during course of trial, which are questioned in present petition. As per section 115
C.P.C. this court can call for the record of the case which has been decided by any
subordinate court in which no appeal lies. The term case decided not only includes decision
of the suit finally decided, rather it can include any order made during pendency of the case
being an interlocutory order, which decides any issue or point which effects the rights of the
parties, in addition where no right of appeal is provided therein. In present case the impugned
orders are made in respect of application/proceedings made under, Order XXXVII, Rule 3(2),
C.P.G. Section 104, C.P.C. and Order XLII, Rule 1, C.P.C. specify the orders against which
appeal lies. The perusal of the section and Rules reveals that orders made under Order
XXXVII, Rule 3, C.P.C. are not included therein. Thus safely it can be presumed that the
orders made thereunder are not appealable, thus the orders of such nature can b e
challenged/questioned before this court in its revisional jurisdiction. As such present revision
petition is very much maintainable.
As far as order made on 22 -2-2007 whereby leave to defend the suit is allowed to the
petitioner/defendant with direc tion to furnish reliable surety for the amount involved i.e.
Rs.80,00,000 is concerned, the petitioner/defendant was aggrieved only to the extent of the
condition/direction for furnishing of surety. The record reveals that the petitioner/defendant
filed an application seeking reduction of security and modification of the order to said extent.
This application was disposed of through order made on 8 -5-2007, whereby the trial Court
declined to accept the prayer made by the petitioner/defendant. Both these ord ers are
impugned in present petition.
The respondent/plaintiff filed suit for recovery of an amount of Rs.80,00,000 with
interest/mark up against the petitioner/defendant under provisions of Order XXXVII, Rule 3,
C.P.C. Rule 3 of Order XXXVII, C.P.C. s peaks as under:
"Defendant showing defence on merits to have leave to appear. ---(1) The court shall, upon
application 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 unconditionally or subject to such terms as to payment into court,
giving security, framing and recording is sues or otherwise as the court thinks fit.
(3) The provisions of Section 5 of the Limitation Act, 1908 (IX of 1908) shall apply to
applications under sub -rule (1)"
Thus as per Sub rule (2) of the Rule a discretion is given to the trial Court either to grant
leave to defend unconditionally or subject to some terms. Giving security is one of the same.
As such to this extent the trial Court has the power to call for deposit of security in the matter,
there is no illegality to this extent in the impugne d order. The only thing which is required to
be seen that whether this discretion has been exercised judiciously or not by the concerned
court. As per petitioner/defendant there is no justification under the law for imposing of the
condition, further the c ourt has misexercised its authority by granting leave conditionally.
The petitioner/defendant is not specific in his contentions; he failed to point out any illegality
or irregularity in the exercise of discretion by the trial Court. Rather the petitioner /plaintiff
stressed more on merits of the case, whereon no findings can be given at this stage. He
further failed to point out any illegality in order made on 8 -5-2007. The trial Court has
exercised -its discretion properly. It is apparent from documents pl aced on record that a
dispute exists between the parties, while they are pursuing against each other on civil as well
as on criminal side. In the circumstances the learned trial Court has made an appropriate
order, which will not only safeguard the rights of the parties, but also works as blockage in
multiplicity of litigation.
The petitioner/defendant has completely failed to make out any case in his favour. Therefore,
the instant revision petition is dismissed being without merits.
No orders as to costs.
H.B.T./57/Q Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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