WAZIR MUHAMMAD vs MUHAMMAD ARIF QURESHI
This petition for leave to appeal arises from a dispute over a summary suit for the recovery of Rs. 5,922,364 filed by the petitioner against the respondent, based on a promissory note and an undertaking to pay on demand. The respondent sought leave to defend the suit, challenging the particulars of a leather purchase transaction but failing to deny the execution of the negotiable instruments. The trial court granted the respondent unconditional leave to defend, a decision subsequently upheld by the High Court in appeal. The petitioner challenges this, arguing that in the absence of a denial of the promissory note's execution, there was no valid ground for leave to defend. Furthermore, the petitioner contends that even if a plausible defense existed, the court erred by failing to condition the grant of leave upon the provision of solvent security or a bank guarantee to protect the petitioner's financial interests. The Supreme Court granted leave to appeal to examine the legality of the High Court's order and the propriety of granting unconditional leave to defend in such circumstances.
- Is a court justified in granting unconditional leave to defend in a summary suit when the execution of the promissory note is not denied?
- Should leave to defend in a summary suit be conditioned upon the provision of solvent security or a bank guarantee when an arguable defense is raised?
- Order XXXVII Rule 3, Code of Civil Procedure 1908
ORDER
' RANA BHAGWANDAS, J.--- Petitioner is aggrieved by Sindh High Court order, dated 6-2-2007 passed in High Court Appeal No,469 of 2006 upholding order, dated 27-11-2006 passed by learned Single Judge under Order XXXVII, rule 3, C.P.C. Granted unconditional leave to defend to the respondent.
2. The petitioner filed suit for recovery of Rs,59,22,364 against the respondent on the basis of promissory note, dated 14-7-2004 and undertaking, agreeing to pay the amount described therein on demand. In the application for grant of leave to defend, respondent challenged purchase of leather by the petitioner on his behalf for want of detailed particulars and did not deny execution of the negotiable documents. Learned Single Judge, however, proceeded to grant leave to defend unconditionally which was challenged in High Court Appeal but without any success, hence this petition.
3. We have heard Khawaja Naveed Ahmed, learned Advocate Supreme Court for the petitioner and with his assistance, gone through the record. It is inter alia contended that in the first instance, there was no plausible ground for grant of leave as execution of promissory note was not denied.
Alternatively, assuming, without conceding that there was an arguable and strong case put forward by the respondent, leave ought to have been granted on condition of furnishing solvent security or bank guarantee but both the Benches of the High Court failed to consider this aspect of the case and granted leave to defend unconditionally without securing the valuable interest of petitioner.
4. Leave to appeal is granted inter alia to consider the question of law whether the High Court was justified in passing the impugned order and whether it can be sustained under the law?