ZUBAIR AHMAD and another Versus SHAHID MIRZA and 2 others

MIAN HAMID FAROOQ, J .‑‑‑The appellants, through the, filing of the present first appeal, have called in question judgment and decree dated 6‑3‑2003, whereby the learned Additional District Judge after finding that the appellants failed to furnish the Bank security to the tune of Rs.18,49,500, subject to which condition they were granted leave to appear and defend the suit, proceeded to pass a decree for a sum of Rs.18,49,500 together with interest at the rate of Rs.2% till the realization of decree against the appellants.

2. Precisely stated the facts, relevant for the decision of the present appeal, are that respondents Nos. 1 and 2/plaintiffs, on 26‑11‑2001, filed a suit for recovery of Rs.18,49,500, against the appellants, before the learned District Judge, under the summary procedure provided under Order XXXVII, C.P.C., on the basis of a dishonoured cheque, reportedly, issued by the firm namely Messrs Zubair Ahmad, Muhammad Bashir Rice:, Dealers, which was returned to the said respondents with the objection "Refer to Drawer". The appellants filed the application, seeking leave to appear and defend the suit, inter alia, submitting therein that they obtained certain loan facility from Habib Bank and pledged rice alongwith the Godowns of the mills and the possession of the Mills alongwith the record was taken over by the Bank Authorities. It was further asserted by the appellants that all the rice stock in the mill was handed over to the Bank Authorities and no rice was ever purchased by the respondents; that the claim of the respondents does not fulfil the requirements of section 9(3) of 2001 Ordinance; that the plaintiffs have no cause of action and that they are not entitled to claim the suit amount. The learned Additional District Judge ultimately allowed the said application, subject to furnishing of bank security to the tune of Rs.18,49,500 within a period of fifteen days, vide order dated 18‑2‑2003. The appellants did not submit the requisite bank security and the learned trial Court, after finding that the conditions. upon which the leave was granted, has not been fulfilled and deeming the contents of the plaint as admitted, proceeded to pass a decree against the appellants for the recovery of Rs.18,49,500 together with interest at the rate of Rs.2%, vide judgment and decree dated 6‑3‑2003, hence, the present appeal.

3. Under the direction of this Court, the appellants have filed certified copies of the complete record of the learned trial Court, which has been made part of this record.

4. Learned counsel for the appellants has submitted that the cheque, which forms basis of the suit, was issued by the firm namely Messrs Zubair Ahmed, Muhammad Bashir Rice Dealers and without impleading partnership firm the defendant in the suit, the same was incompetent and not maintainable hence all the ensuing orders, including the impugned judgment and decree, are not sustainable under the law. He has further submitted that the learned trial Court, after having admitted in order dated 18‑2‑2003 that the appellants have raised substantial questions of law and facts and that those can be ascertained after recording the evidence, was under a legal obligation to have granted unconditional leave to appear and defend the suit. He has added that the, appellants are aggrieved by order dated 18‑2‑2003, through which the appellants were directed to furnish the bank guarantee. The learned counsel, while reinforcing his arguments and relying upon Muhammad Yousaf v. Allah Yar (PLD 1987 Lahore 101), has submitted that under the present set of circumstances, the appellants were entitled for unconditional leave to ‑ appear and defend the suit and that the condition of bank security, is unreasonable and harsh. Conversely, the learned counsel for the respondents, while relying upon Col. (Retd.) Ashfar Ahmad and other v. Sh. Muhammad Wasim (1999 SCMR 2832), has submitted that as the appellants failed to fulfil the condition subject to which the leave was granted, therefore, the learned trail Court had no alternative except to pass a decree and, therefore, the impugned judgment and decree do, not call for any interference by this Court:

5. In view of .the arguments raised by learned counsel for the parties, we have examined the available record, particularly appellants' application for the .grant of leave to appear and defend the suit. As regards the first contention of the learned counsel, viz., partnership firm) was not impleaded in the suit, we have thoroughly examined the contents I of the application, filed by the appellants, seeking leave to appear anti defend the suit and do not find that any such plea was raised by the appellants before the learned trial Court. Although in the said application certain objection; as noted above, were taken by the appellant, yet the aforenoted plea, now urged by the learned counsel, was neither raised in their application nor agitated by them before the learned Additions District Judge. Under the law, a defendant is required to specifically raise all points of law and facts in the written statement in order to show that the suit is not maintainable and barred by law, inasmuch as the legs: infirmities in the suit must be specifically pleaded and its particulars must be narrated. Reference can be made to the judgments reported as Amir Shah v. Ziarat Gul (1998 SCMR 593) and Anwar Ali and others v. Manzoor Hussain and another (1996 SCMR 1770). It is settled law by now that a party is not permitted to deviate from its pleadings nor the Court can set up a different plea for a party. If any judgments art required, the cases reported as Messrs Chaudhry Brother Ltd., Sialkot v. The Jaranwala Central Cooperative Bank Ltd., Jaranwala (1968 SCMR 804), Mst. Janat Bibi v. Sher Muhammad and others (1988 SCMR 1696) and Binyameen and 3 others v. Chaudhry Hakim and another (1990 SCMR 336) can be referred.

Being guided by the law declared, we are of the view that as the said plea was neither raised in the appellants' application nor agitated before the learned Additional District Judge, therefore, they arc precluded from urging the said plea for the first time before this Court.

6. Even otherwise the applicants have no case on this count. Under the law, any one partner may sue or be sued on behalf of the firm and it is not necessary that all the remaining partners join as plaintiff$ or defendants. Reliance can be placed on Messrs Combined Enterprises v. Water and Power Development Authority, Lahore (PLD 1988 SC 39), wherein the Hon'ble apex Court of the Country, while dealing with the relationship of partners, inter se, has held as under:‑‑

"In clause (2) of rule 1 of Order XXX, there is no requirement laid down for a partner to have an authority from the other partners before initiating an action by way of a suit. This is not without a purpose as on account of the relationship of each partner being a principal and an. agent for each other they are under the law, regarded as representing the other and for than matter as an agent of the firm."

Additionally, in this regard, section 43 of the Contract Act is also attracted, which provides that any one of joint promisors may be compelled to perform whole of the promise.

In view whereof, we are of the considered view that the first contention raised by the learned counsel for the appellants is misconceived and without substance, thus, repelled.

7. As is evident from para. 2 of the memorandum of appeal that the appellants are really aggrieved by order dated 18‑2‑2003. To our mind, the pivotal questions, around which the entire controversy revolves, are as to whether under the facts and circumstances of the case, as highlighted through filing the plaint, application‑for leave to appear and defend the suit coupled with the documents produced by the parties, the appellants are entitled for the unconditional leave to appear and defend the suit, as canvassed by the learned counsel for the appellants, and as to whether order dated 18‑2‑2003, whereby the conditional leave was granted to the appellants, is sustainable under the law. For this one has to revert to the provisions of Order XXXVII, rule 3(2), C.P.C., which provides that "leave to defend may be given unconditionally or subject to such terms as to payment into Court, giving security, framing and C recording issues or otherwise as the Court thinks fit'. It flows from the bare perusal of the aforenoted provision of law that discretion has been conferred upon a Court to grant leave to defend the suit, either unconditionally or subject to such terms as to payment into Court on giving security. In this case, the learned .trial Court, while considering the pleadings of the parties, came to the conclusion that the appellants are entitled for the grant of leave to defend the suit, but subject to condition of furnishing bank guarantee, in exercise of powers under the aforenoted provision of law. It has nowhere been laid down under Order XXXVII, C.P.C., that when a case is made out, a defendant must be granted unconditional leave to defend the suit rather this matter has been left to the discretion of the Court. In this case, the learned trial Court, in exercise of its discretionary powers, has tagged the condition of submitting bank security with leave to appear and defend the suit. The attachment of said condition cannot be termed, under any stretch of imagination, as illegal, without jurisdiction or even arbitrary and harsh. We are of the view that if the appellants would not have been able to make out a case for the grant of leave to defend the suit, then obviously, their application was liable to be dismissed and the question of grant of leave could not have arisen. The learned trial Court under the circumstances has rightly came to the conclusion that the appellants are entitled for the grant of leave, but the same would be subject to furnishing of bank security for the suit amount. The learned trial court after coming to the conclusion that "the defendant has raised substantial question of law and facts in the case. To my mind, these facts can be ascertained after recording the evidence" granted conditional leave to appear and defend the suit. This approach of the learned trial Court shows that it was conscious of the fact that although the appellants in entitled for the grant of leave, yet tagging up of conditions of bank guarantee would be in the interest of justice. In a case reported as Mian Rafique Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. and another (PLD 1996 SC 749), it was held that "exercise of discretion by Court granting leave to defend to a defendant, condition of furnishing of hank guarantee was not open to any' exception by the Supreme Court in circumstances."

8. It is settled law that the leave to defend may be granted conditionally or unconditionally in the discretion of the Court. If any case‑law is needed; the judgments reported as Mian Rafique Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. and another (PLD 1996 SC 749), Niaz Ahmad and 2 others v: Habib Bank Ltd. and others (1991 SCMR 75) and Messrs Ark Industrial Management Ltd. v. Messrs Habib Bank Limited (PLD 1991 SC 976) can be referred. We feel that the learned trial Court, while ragging up the condition of depositing of bank security with the leave granting order, has exercised its discretion in accordance with the recognized principles, governing the exercise of discretion and the same has not been exercised illegally, arbitrary or in a fanciful manner, thus, we are not inclined to interfere in the discretion exercised by the learned trial Court. It has been held in Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another (PLD 1970 SC 139) that the discretionary orders of subordinate Courts cannot be interfered with, unless found fanciful and arbitrary.

In the above perspective, we are constrained to hold that order dated 18‑.2.‑2003, whereby the appellants were granted leave to defend the suit subject to furnishing bank security, is not open to exception and was properly and‑ legally passed, thus, the said order is hereby maintained.

9. The next question could be as to what would be the effect in case a person fails to fulfil the condition subject to which he is granted leave to defend the suit. It is settled law that when a defendant fails to fulfil the condition subject to which the leave was granted, it is the duty of the Court to pass a decree against the said defendant. If any cases are needed, the judgment reported as Abdullah v. Shaukat (2001 SCMR 60), Col. (Retd.) Ashfaq Ahmad and others v. Sh. Muhammad Wasim (1999 SCMR 2832), Aftab Iqbal Khan Khichi and another v. Messrs United Distributors Pakistan Ltd. Karachi (1999 SCMR 1326) and Fayyaz‑ul‑Hassan v. Messrs National Feed (Pvt,) Ltd. (2001 MLD 1630) can be referred.

10. As regards the case of Muhammad Yousaf, supra, relied upon by the learned counsel for the appellants, suffice it to say that the Hon'ble Supreme Court of Pakistan in a case reported as Messrs Ahmed Autos and another v. Allied Bank of Pakistan Limited (PLD 1990 SC 497) did not approve the said case. In view whereof, the case of Muhammad Yousaf (ibid) is of no avail to the appellants.

11. Now coming to the portion of the decree, whereby the learned Additional District Judge, while decreeing the suit, awarded the interest, at the rate of Rs.2 % till realization. We have examined the available record and find that the appellants nowhere undertook to pay the interest to the respondents in case they failed to return the amount mentioned to the cheque. We are of the view that the respondents are not entitled for the grant of interest which has illegally been allowed by the learned trial Court and to that extent we are inclined to modify the impugned decree.

12: In the above: backdrop, we ha v;; examined the impugned judgment and decree and are of the view that the same was the legal consequence of failure of the appellants to fulfil the terms of leave granting order dated‑ 18‑2‑2003 and, therefore, the learned trial Court was justified in passing the decree for recovery of the suit amount, against the appellants. The impugned judgment and decree, to the extent of suit amount, is legal, unexceptionable and does not call for any interference by this Court, thus, the same is maintained to that extent.

13. Upshot of the above discussion is that the present appeal is partly allowed and the impugned judgment and decree dated 6‑3‑2003 stands modified to the extent of awarding of interest, as noted above, however, the rest of the findings of the learned trial Court and awarding of decree to the extent of Rs.18,49,500 only shall remain operative and hold the field. No order as to costs.

M.A.W./Z‑10/L Appeal party allowed.