RASHID AHMAD Versus NATIONAL BANK OF PAKISTAN Ltd.

The petitioner is defending a suit for the recovery of Rs. 3,41,163.72 now pending in the Court of the learned Special Judge Banking Lahore. On 20‑1‑1982 the learned Special Judge granted leave to the petitioner to appear and defend the suit on the condition that he should deposit the entire amount in the Court by the next date of hearing. The petitioner has brought a writ petition on the ground that the direction of the learned Special Judge Banking regarding the deposit‑ of the entire amount is without lawful authority. It has been pointed out by the petitioner that the amount is sufficiently secured, in the senses that stocks of rice and paddy worth more than Rs. 2,00,000 were pledged with the bank and also a house was mortgaged in 1978 in favour of the bank the valuation of which is over Rs.4,00,000. It is contended that since valuable assets have been pledged in favour of the bank the loan is sufficiently secured and there was no justification for a direction to deposit the disputed amount in Court as a condition to appear and defend the suit. In this regard the learned counsel relies on the case of Dur Muhammad Piracha V. Judge Special Court Banking and others 1982 CLC 1625; Ijaz Ahmad Piracha v. Judge Special Court Banking and others 1982 CLC 2367; Messrs Shahzad Ice Factory and 2 others v. Special Judge Banking (11) Lahore and another P L D 1982 Lab. 29; and Messrs S.M. Ayub & Co. and others v. National Bank of Pakistan and others 1983 CLC 2828. The last mentioned is a judgment given by a Division Bench of this Court. The learned counsel for the respondents, on the other hand, has pointed out that under Order XXXVII rule 3(2) it is within the discretion of the Court to grant leave unconditionally or upon conditions including payment into the Court. It is contended that the High Court will not interfere in a discretionary order as long as the orders are within jurisdiction. In support of his contention the learned counsel has referred to the case of Muslim Commercial Bank Ltd. v. Sh. Ijaz Nisar and 2 others 1982 CLC 1433. The learned counsel also relies on the cases of Fine Textile Mills Ltd. Karachi v. Haji Umar P L D 1963 SC 163 and Haji Karim and another v. Zakar Abdullah 1979 SCMR 100. He has also produced a copy of the judgment of the Supreme Court in Civil Petition No. 100 of 1981. In the case of Fine Textile Mills Ltd: Karachi v. Haji Umar P L D 1963, SC 163; while allowing the appeal the Supreme Court granted leave to defend the suit but a condition was imposed that the entire amount of Rs. 90,000 be deposited in Court within two months. Similarly in the case of Haji Karim and another v. Zakar Abdullah 1973 SCMR 100, as also the case of M/s. Mairaj Sons and others v. United Bank Limited and others C.P. No. 100 of 1981, the Supreme Court upheld the orders of the Court's below regarding the deposit of the entire amount in Court.

2. There is no denying the fact that under Order XXXVII, rule 3(2) the decision to grant leave unconditionally or conditionally including a direction to deposit the disputed amount in Court lies within the discretion of the Court. The judgments relied on by the petitioner also take note of the extent of powers of the High court in writ jurisdiction with regard to discretionary orders but the High Court decided to interfere in the orders only because these were found to be fanciful, arbitrary or capricious. It may be mentioned here, that the Supreme Court's judgments referred to above were not brought to the notice of the learned Judges of the High Court. But even if the precedents referred to above are followed the only conclusion one can draw is that the exercise of discretion could not be interfered with except where the orders passed were fanciful, arbitrary or capricious and this will depend on the circumstances of each case.

The orders passed in the present case have been questioned mainly on the ground that the loan advanced by the bank was sufficiently secured. This, however, is not an admitted position. As regards the pledge of the stocks of rice and paddy referred to above the learned counsel for the respondents has referred to a document executed on 17‑6‑1980 by the petitioner to the effect that the stocks were taken away by him with an undertaking that the sale proceeds shall be deposited in the bank. The learned counsel submits that the sale proceeds were not deposited in the bank. As regards the house which was mortgaged in 1978 the bank disputes its valuation and does not admit that the valuation of the house is sufficient to meet the loan advanced to the petitioner. This only shows that the claim of the petitioner that the loan is sufficiently secured has not been admitted by the bank. Under these circumstances the orders of the learned Special Judge Banking that the amount be deposited in Court as a condition to leave to appear and defend cannot be termed as arbitrary, fanciful or capricious exercise of discretion. It has already been observed that the orders passed by the learned Judge are not without jurisdiction. The writ petition has, therefore, no merit. It is dismissed.

M.Y.H./3986/L Writ refused.