Messrs STFA C. & CO. vs NAEEM KHAN

' IJAZ-UL-HASSAN KHAN, J.--- Shorn of unnecessary details facts relevant for the disposal of instant civil revision are that the respondents/plaintiffs instituted a suit for declaration and recovery of money against the petitioner/defendant in the Court of Senior Civil Judge, Swabi. The petitioner/defendant filed the written statement. In the meanwhile, the respondents/plaintiffs moved application under Order XXXVIII, rule 5 of C.P.C. On 30-10-2003 praying for direction to the petitioner/defendant to furnish security in the sum of Rs,57,000,000. The petitioner/defendant contested the application by filing reply. The application of the respondents/plaintiffs was accepted by order, dated 11-3-2004 of Civil Judge, Swabi with direction to the petitioner/ defendant to furnish security in the sum of Rs,57,000,000 with two sureties each in the like amount.

2. The petitioner/defendant, feeling aggrieved of the order, dated 11-3-2004, has filed the present civil revision under section 115, C.P.C., challenging the impugned order on a variety of grounds.

3. Having heard the arguments of learned counsel for the parties in the light of the material on record, we find ourselves in agreement with learned counsel for the petitioner/defendant that the learned trial Court has failed to exercise the jurisdiction vested in it by not considering the material aspects of the case e.g. The corporate status of the company and its large base in Pakistan. The petitioner/defendant is a large reputable company operating in several countries. In Pakistan the petitioner company has successfully completed several mega projects of national importance e.g. Ormara Naval Base, various sections of Indus High Way, construction of present project Pehur High Level Canal, Tarbela etc. 3-A. It needs no reiteration that an application under Order XXXVIII, rule 5, C.P.C. Can only be granted when there is sufficient material on record that the defendants are planning to leave the country with a view to defeat the recovery of plaintiffs' claim. In the instant case there exists no such circumstance. Vague allegations about intentions that the defendant will leave the country are not sufficient. Definite evidence is required to be led before the Court in support of such contentions. The Court is required to satisfy itself that the defendant is about to dispose off his assets, only then such order can be made. Merely by establishing a prima facie case attachment before judgment cannot be granted unless necessary ingredients of Order XXXVIII, rule 5 have been satisfied.

4. There can be no cavil with the proposition that attachment before judgment is not to be lightly ordered and that the Court has to satisfy itself before making any such order that the defendant is about to leave the country or dispose of his property with a view to frustrate or delay the execution of the decree that may be passed against him. It is axiomatic that the attachment under Order XXXVIII, rule 5, C.P.C. Cannot be ordered as a matter of course only on the ground that the plaintiffs have a good case at the trial and is to be ordered in exceptional cases only when conditions prescribed by law are satisfied. Travel Agents Association of Pakistan v. Messrs Skyline (Pvt.) Travels Ltd. And others 1992 CLC 1644; Messrs Balagamwala Oil Mills v. Messrs Shakarchi Trading A.G. And others 1991 CLC 2071; Muhammad Amin v. Muhammad Moosa and 5 others 1987 CLC 1784; Muhammad Yousaf v. Agha Amir Muhammad PLD 1976 Kar. 926 and Virasat Ullah and another v.

Messrs United Bank Ltd., Lahore PLD 1961 SC 537.

5. In the result and for the foregoing reasons, we accept the civil revision and set aside the impugned order. The parties are, however, left to bear their own costs.