O. XXXVII, Rr. 2 & 3(2)---Summary suit for recovery of money---Leave to defend granted---Conditional upon bank guarantee equivalent to the claimed amount---Substitution of bank guarantee by deposit of original title documents of property of equivalent value---Permissibility---Trial Court allowed application of defendant for leave to defend but made it conditional upon submission of bank guarantee equivalent to the amount claimed in the suit---Defendant made an application seeking substitution of bank guarantee with deposit of title documents of property of equivalent value---Said application was rejected by the Trial Court and High Court---Validity---Substitution of bank guarantee as security with original title documents of property of equivalent value ought to have been allowed in circumstances of the case---Issue relating to deposit of original title documents as security had already been decided by the Supreme Court when the case was remanded to the High Court with the direction to accept the original title documents of property as surety---Orders of High Court and Trial Court were set aside in circumstances and matter was remanded to the Trial Court with the direction that original title documents of property deposited by the defendant shall be treated as security for the purposes of grant of leave to defend ---Appeal was allowed accordingly.
2009 SCMR 1101
O. XXXVII, Rr.2 & 3---Suit for recovery of money on the basis of cheque and promissory note---Affidavit filed by the defendant with his application for leave to defend the suit had not disclosed necessary facts to prove "prima facie" "plausible defence", therefore it would be inferred that affidavit was not in accordance with the provisions of O.XXXVII, R.3, C.P.C.---Contention of the defendant was' that Court had directed him to file written, statement and adopted the other procedure---Held, suit was filed by the plaintiff under O.XXXVII, R.2, C.P.C. and a special procedure had been provided in the said provision, to be followed in suits instituted upon bill of exchange, hundies or promissory notes---Where the defendant had defaulted in obtaining prescribed leave for his appearance for defending the suit and application for leave to defend the suit was not allowed by the court then no option was left with the court but to decree the suit without recording of evidence otherwise object of speedy and summary trial could be defeated---If the Court, without adverting to the special procedure provided under the law, had directed the defendant to file written statement and thereafter adopted valid and required procedure, it had not committed any illegality---Principles.
2008 SCMR 425
O. XXXVII, Rr. 2 & 3---Constitution of Pakistan (1973), Art.185(3)---Suit for recovery of amount on the basis of pro note---leave to defend suit---Unconditional leave to defend suit was granted by the High Court to respondent---Petitioner aggrieved by said order had filed petition for leave to appeal---No plausible ground was .given for grant of leave as execution of promissory note was not denied by the respondent---Even if there was an arguable and strong case put forward by the respondent, leave ought to have been granted on condition of solvent security or Bank guarantee, but both the Benches of the High Court failed to consider such aspect of the case and granted leave unconditionally to defend suit without securing the valuable interest of the petitioner---Leave to appeal was granted to consider question of law whether the High Court was justified in passing the impugned order and whether it could be sustained under the law.
2008 SCMR 39
O. XXXVII, Rr.2 & 3---Constitution of Pakistan (1973), Art.185(3)---Suit for recovery of amount---leave to defend suit---leave to defend suit was granted to petitioner conditionally on furnishing security in the sum of Rs.5,50,000 within 30 days of the order---Petitioner, who did not comply with order furnishing security, filed revision application before the High Court for waiver of such condition which was dismissed---Contention of the petitioner was that besides the said suit, respondent had also initiated criminal proceedings against the petitioner under section 489-F, P. P. C., wherein petitioner was arrested and was ordered to be released on bail on furnishing security in the sum of Rs.2,00,000---Submission of petitioner was that he having furnished security in the sum of Rs.2,00,000, same could be treated as security in the present case---Validity---Contention of petitioner was without any merit, as that case and criminal case pending against him were two separate cases and security furnished by the petitioner in the sum of Rs.2,00,000 for his release on bail, could not be treated as security in the case---On failure of petitioner to furnish security as ordered by the District Judge within the period of thirty days, suit in accordance with the provision of O.XXXVII, C.P.C., stood decreed---Question of accepting the security furnished by the petitioner in the bail case as security in present case, would not arise---Petition for leave to appeal was dismissed.
PLD 2005 SUPREME-COURT 322 --O. XXXVII, R. 3(2)---Constitution of Pakistan (1973), Art. 185(3)--Suit for recovery of money on the basis of pronote---Grant of leave to defend the suit---Scope---Provisions of O.XXXVII, R. 3(2), C.P.C. lay down and empower the Court to grant leave to defend either unconditionally or subject to such terms as to payment into Court or giving security---Demand of the Court for furnishing security was thus not unlawful ---Defendant in the present case, had not objected to the order for furnishing of security by the Court and sought various adjournments to arrange for the security---Decree, on account of noncompliance of the order of the Court was rightly passed by the District Judge and upheld by the High Court---No valid reasons being available to interfere, Supreme Court dismissed the petition for leave to appeal.
2005 SCMR 1655
---O. XXXVII, Rr.2, 3 & 4---Constitution of Pakistan (1973), Art.185(3)---Suit for recovery of money based on cheque---WAPDA awarded contract to defendant, which he further sub-contracted to plaintiff on payment of fixed amount---Defendant gave cheque to plaintiff on completion of work of sub-contract---Defendant's application for leave to defend suit was dismissed on merits---Defendant filed application under O.XXXVII, R.4, C.P.C. for setting aside decree and grant of leave to defend suit, but same was dismissed---High Court dismissed revision of defendant---Plea of defendant was that he had to pay suit amount after recovery of amount from WAPDA on completion of contract by him---Validity---Decree once passed could be set aside under O.XXXVII, R.4, C.P.C. on showing special circumstances---Defendant had accepted his liability to pay fixed amount to plaintiff by issuing cheque---Matter about payment of dues between defendant and WAPDA had no concern with plaintiff, who was to be paid fixed amount as per agreement---Such was a case of admitted liability, thus, after rejection of application for leave to defend suit, there was no special circumstance to entertain application under O.XXXVII, R.4, C.P.C.---Supreme Court dismissed petition and refused leave to appeal.
2004 SCMR 836
----O.XXXVII, Rr.2 & 3---Limitation Act (IX of 1908), S.5 & Art. 159---Suit for recovery of money---leave to defend Suit --Condonation of delay---Defendant was personally served on 20-3-2002--Application for leave was filed on 16-4-2002---Trial Court dismissed application being barred by time and decreed suit after recording ex parte evidence---Appellate Court upheld such decree ---Validity--Defendant had taken up wavering stances to cover up his belated approach before trial Court---Defendant could not substantiate his alleged illness---Plea before High Court as to non-supply of copy of plaint at the time of service of summons had not been agitated earlier--Medical certificate filed for the first time did not support defendant's case as taken up in leave application---Defendant had failed to explain his belated approach---Supreme Court dismissed petition and refused leave to appeal.
2004 SCMR 882 ----O. XXXVII, R.3---Constitution of Pakistan (1973), Art.185(3)---Conditional leave to defend the suit---Non-compliance of conditions imposed in leave granting order---Failure to furnish security---Trial Court directed the defendant to deposit surety of suit amount within one month---Defendant failed to comply with the order and the Trial Court had no option but to decree the suit---High Court maintained the judgment and decree passed by Trial Court which gave the defendant sufficient time to comply with its direction ---Defendant on the contrary instead of complying with the same, unnecessarily involved the plaintiff in uncalled for litigation---Validity---Conduct of the defendant as determined by the trial Court was certainly contumacious and no illegality whatsoever had been committed by the High Court in dismissing the appeal through the judgment---Leave to appeal was refused.
1999 SCMR 2832
Civil Procedure Code --Order XXXVII of C.P.C. Summary Procedure on Negotiable Instruments ----O.XXXVII, R.3(2)---Grant of leave to defend suit---Discretion of Court--Scope---Record showed that borrower did not dispute execution of cheques issued in favour of loanee but expressed that said cheques were not intended to be encashed/honoured---Initial order conditionally granting leave to defend the suit on furnishing Bank guarantee passed by Trial Court did not suffer from any material defect in circumstances.
1997 SCMR 943
Civil Procedure Code --Order XXXVII of C.P.C. Summary Procedure on Negotiable Instruments ----O.XXXVII, R.3---Constitution of Pakistan (1973), Art. 185(3)---Suit in summary jurisdiction for recovery of Bank loan---Defence based on plea of incorrect statement of accounts filed by plaintiff-Bank---Leave to appear and defend suit refused to defendants on ground that such defence had no force--Plaintiff's suit was consequently decreed---High Court dismissed defendant's appeal on the ground that mere assertion of incorrectness of statement of accounts, mistakes not specifically pin-pointed could not be made basis for grant of leave---Validity---Defendants raised contention in their petition that where defendants set up defence, whether plausible or illusory, they must be granted leave to defend suit, for at that stage when leave to defend suit was sought, Court was not to try the action; it was only to see if there was bona fide allegation of triable issue; that defendant having set up defence which at least raised triable issue, he was entitled to grant of leave to defend suit; and even if defence set up by defendant was said to be vague or unsatisfactory, leave to defend suit still could not have been refused and should have been granted on condition of furnishing security or deposit of amount---Contentions raised by defendants needed consideration---Leave to appeal was granted with direction that defendants would furnish Bank guarantee for payment of decretal amount within one month, otherwise leave would stand rescinded.
PLD 1996 SUPREME-COURT 749 O. XXXVII, R.3 --- Constitution of Pakistan (1973), Art. 185(3) --- Leave appear and defend suit conditionally --- Leave to appeal to Supreme Court W granted to examine whether condition of frunishing Bank guarantee imposed the time of grant of leave to defend the suit was justified and in line with case-law on the subject. ----O. XXXVII, R.3 --- Grant of leave to defend suit conditionally unconditionally --- Essentials --- Defence of defendant, if illusory, or lacking bona fides or intended to delay, the proceedings or based on allegations of vague and general nature relating to misrepresentation, fraud or coercion without any supporting material --- Effect.
1993 SCMR 931 ----Ss.7 & 3---Civil Procedure Code (V of 1908), OXXXVII,. R.3---Limitation Act (IX of 1908), Arts.159 & 181---Application for leave to defend the suit--Article 159, Limitation Act, 1908 having direct nexus with the provisions of OXXXVII, C.P.C. and both provisions being interdependent and interconnected have to be applied in the trial of suits under the Banking Companies (Recovery of Loans) Ordinance, 1979.
1992 SCMR 718 Civil Procedure Code --Order XXXVII of C.P.C. Summary Procedure on Negotiable Instruments ----.O. XXXVII, R.3---leave to defend suit---Guarantor had not issued nor executed any negotiable instrument in favour of the supplier, as to warrant summary proceedings being initiated against it---Guarantee and indemnity bonds being riot negotiable instruments and summary suit under O.XXXVII, C.P.C. could only be instituted upon bill of exchange, Hundis or promissory notes---Since guarantor had executed the guarantee bond, the summary procedure proceeded under OXXXVII, C.P.C. was not applicable to it--Order off the Court granting leave to guarantor to appear and defend the suit under OXXXVII, R.3, C.P.C. subject to deposit of the amount claimed, could not be sustained.
1991 SCMR 2355 ----S. 12---Civil Procedure Code (V of 1908), O.I, R. 10, OXVI, R. 17 & OXXXVII, R.3---Constitution of Pakistan (1973), Art. 199---Constitutional jurisdiction, exercise of---Alternate remedy---Effect---Suit for recovery of bank loan---Interlocutory order passed by Court under provisions of OXXXVII, R. 3, C.P.C. refusing addition of parties and inclusion of additional amount in suit--- Such order although passed under provisions of OXXXVII, R. 3, C.P.C. granting conditional leave to defend the suit on furnishing security and not on an application under O.I, R.10 or under OXVI, R.17, C.P.C., yet same could be made a ground in appeal from final judgment under provisions of S. 12, Banking Companies (Recovery of Loans) Ordinance, f979---Alternative remedy by way of appeal being available, and same having not been availed of, Constitutional jurisdiction could not he invoked.
PLD 1991 SUPREME-COURT 976 O. XXXVII, R.3---Suit based on promissory note---Application for leave to defend suit---Summary procedure---Court is competent upon application by the defendant to grant leave to appear and defend the suit unconditionally or subject to such terms as to payment into Court, giving security, framing and recording issues or otherwise as the Court thinks fit---Court can grant leave upon application and affidavits in support thereof which disclose such facts as would make it incumbent on the holder to prove the consideration or such other facts as the Court may deem sufficient to support the application---Discretion to grant leave unconditionally or conditionally is left to the Court as contemplated under O. XXXVII,R.3(2),C.P.C.
1990 SCMR 686
Civil Procedure Code --Order XXXVII of C.P.C. Summary Procedure on Negotiable Instruments ---O.XXXVII, R.3---Constitution of Pakistan (1973), Art.185(3)---Leave to appear and defend the suit---Conditions imposed while granting leave to defend the suit being within the discretion of trial Court, Supreme Court could examine question whether discretion exercised in that behalf had been exercised legally, reasonably, fairly and not oppressively, capriciously or perversely.
1989 SCMR 1834 ---OXXXVII, R.3--leave to defend the suit--Merits of the case could not be gone into in petition for leave to defend --Fact that A was the Promoter Director of the Company and that he acknowledged the liability on behalf of the petitioners was not denied--Order passed by High Court allowing application for leave to appear and defend suit subject to the furnishing of Bank Guarantee and for the remaining amount furnishing of a security bond, held would not call for any interference at intermediary stage.
1984 SCMR 568
-- O. XXXVII, r. 3 read with Negotiable Instruments Act (XXVI of 1881), S. 118-Suit upon promissory note-Grant of leave to defend imposition of conditions-Question whether defendant agreed to pay time barred debt arising from very pleadings of plaintiff-Defence of defendant cannot, in such case, be held to be altogether sham or colourable --- Conditions could not be imposed merely because of rebuttable presumption that negotiable instrument was made for consideration under S. 118 of Act-Imposition of conditions requiring defendant to furnish security to extent of entire claim of plaintiff Held, would in circumstances of cases amount to tendering grant of leave to defend illusory.
1975 SCMR 393
-- O. XXXVII, r. 3(2)-leave to defend .-Imposition of conditions for leave to defend -Not always necessary-Matter one of discretion of Court and depends upon facts and circumstances of each case-High Court finding bona fide allegation of a triable issue prima facie made out and granting unconditional leave to defend -Order held neither unjustified nor unreasonable-Leave to appeal to Supreme Court refused.
1973 SCMR 100
---O. XXXVII, r. 3 and Negotiable Instruments Act (XXVI of 1881), S. 118-Summary suits on negotiable instruments-Signatures on instruments not denied but allegations made against plaintiff about manner in which promissory notes manipulated-Held, initial presumption arises under S. 118 of Act XXVI of 1881, of instrument being made, drawn, accepted or endorsed for consideration-Presumption although rebuttable yet onus lies on person denying consideration to prove same Court justified in imposing, on defendant, condition while granting leave to defend suit that amount in suit be deposited in Court or security furnished in lieu thereof.
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