PLJ 2022 Lahore 499
Civil Procedure Code, 1908 (V of 1908)--
----O.XXXVII R. 2(2) & S. 96--Suit for recovery on basis of dishonoured cheque--Rendition of accounts--Issuance of cheque as well as partnership of business--Leave to defend was allowed subjects to submission of surety bonds equivalent to disputed amount--Application for extension of time and submission of surety was dismissed--Validity--Since acceptance of PLA sufficient time was given by trial Court as well as this Court to appellant for furnishing of surety bonds but it transpires from record that appellant neither made any bona fide effort to comply with orders of Court and nor fulfilled conditions imposed by Courts as such conditional order to extent of leave to appear and defend suit would automatically cease to have any effect. [P. 502] A
Negotiable Instrument Act, 1881 (XXVI of 1881)--
----S. 118--Issuance of negotiable instrument--Cheque--Presumption--Under Section 118 of Negotiable Instruments Act a strong legal presumption of issuance negotiable instrument (cheque) against negotiable instrument (cheque) against consideration is attached to said document and appellant was placed under heavier obligation to produce extraordinary trustworthy corroborative evidence to dissipate presumption but he contumaciously showed defiance to orders of Court and deliberately missed opportunity of defending suit and has failed to dislodge above legal presumption which disentitled him from any relief. [P. 503] B
Rana Muhammad Iqbal Noon, Advocate for Appellant.
M/s. Rana Muhammad Asif Saeed Khan & Malik Amir Javed Butta, Advocates for Respondent.
Date of hearing: 28.6.2021.
PLJ 2022 Lahore 499
Present: Ch. Muhammad iqbal, J.
versus
AZHAR IQBAL--Respondent
R.F.A. No. 274 of 2018, heard on 28.6.2021.
Judgment
Through this single judgment, I intend to decide the titled RFA along with connected RFA Nos. 273 & 275 of 2018 as common questions of law and facts are involved in these appeals.
2. Through these Regular First Appeal under Section 96 CPC, the appellant has challenged the validity of order & decree dated 18.10.2018 passed by the learned Addl. District Judge, Burewala who decreed the suit for recovery of Rs. 3,35,00,000/- filed by the respondent in terms of sub-rule (2) of Rule 2 of Order XXXVII CPC.
3. Brief facts of these appeals are that the respondent/plaintiff filed suit for recovery of Rs. 3,35,00,000/- on the basis of dishonoured cheque dated 02.06.2017 under Order XXXVII Rules 1 & 2 CPC against the appellant/defendant contending therein that both the parties are close relatives and they entered into joint business in the year 2010 for setting up Housing Colonies in District Faisalabad. In the year 2017 they renditioned the accounts of business. A sum of Rs. 4,53,00,000/- was accrued in favour of the plaintiff as profit, out of which Rs. 97,00,000/- was paid whereas a Cheque No. 11562226 dated 02.06.2017 of Silk Bank Sargodha Branch regarding the remaining amount of Rs. 3,35,00,000/- was issued in favour of the appellant. On presentation of the said cheque the same was dishonoured.
Appellant/defendant filed petition for leave to appear and defend the suit in which the learned counsel of the respondent made his conceding statement on 02.10.2018 .that the plaintiff has no objection for acceptance of leave to defend subject to submission of surety bonds equivalent to suit amount. The learned Addl. District Judge, Burewala on the basis of above statement granted leave to appear and defend the suit on 08.10.2018 subject to furnishing of surety bonds equivalent to the disputed amount of Rs. 97,00,000/- with one surety in the like amount to the satisfaction of the Court with further stipulation that in case the suit is decreed in favour of the plaintiff, both defendant/appellant and the surety would be bound to pay the decretal amount. Surety bonds be deposited within 10 days. The appellant filed application for extension of time of submission of the surety which was dismissed and on the same day, suit of the respondent was decreed vide order & decree dated 18.10.2018. Hence, these appeals.
4. I have heard the learned counsels for the parties at length and gone through the record with their able assistance.
5. Issuance of cheque as well as partnership of business is admitted between the parties. On 02.10.2018, the learned counsel for the respondent/plaintiff made statement that the plaintiff has no objection if the leave to defend of the appellant is allowed subject to submission of surety bonds equivalent to the disputed amount. On 08.10.2018, the learned trial Court allowed the petition for leave to defend the suit subject to furnishing surety bonds equivalent to the disputed amount of Rs. 97,00,000/-within ten days but the appellant did not comply with order rather filed application u/S. 148 CPC for extension of time without any good cause. The said application was dismissed by the learned trial Court vide order dated 18.10.2018 directing the appellant to submit surety bonds in terms of order dated 08.10.2018 but he did not comply with the above said order of the Court whereas the learned trial Court at 3:30 pm decreed the suit of the respondent while exercising his power under Rule 2(2) of Order XXXVII, CPC and decreed the suit.
6. Even otherwise, this Court vide order dated 31.05.2019 passed restraining order on application (CM No. 01-C of 2018) for the grant of interim relief;
"Subject to deposit, of 1/3rd of decretal amount and submission of 3rd party surety equivalent to remaining decretal, amount within two months from today with the Deputy Registrar (Judicial) of this Court and notice for the given date, the operation of impugned decree is suspended in the meanwhile. If ad-interim injunction is not extended on any future date, the same shall stand vacated."
"5. The appellant had all the time in the world to comply with the direction, dated 18.1.1992 and that too by submitting a personal surety bond in the sum of Rs. 22,400 between 18.01.1992 and 9.2.1992. He did not do so and his failure was rightly considered by the learned District Judge and the learned Judge in the Lahore High Court, Multan Bench as tantamount to admission of the claim of the other side."
In another case titled as Muhammad Ramzan & others vs. Ghulam Qadir (2011 SCMR 659) the Hon’ble Supreme Court of Pakistan held as under:
"It is not denied that it was within the discretion of the learned trial Court to grant leave to defend the suit subject to imposition of condition. The order of the learned trial Court on that regard was perfectly legal, furthermore it was not challenged by the petitioners. The petitioners were given sufficient time to comply with the direction of the learned trial Court vis-a-vis furnishing the surety bonds but the orders were not complied with for no justifiable reasons. The learned trial Court rightly dismissed the applications of the petitioners seeking leave to defend. The learned counsel failed to point out any irregularity or infirmity in the judgments passed by the learned Courts below."
In a case titled as Abbas Ali & Another vs. Asif Abbas & 3 Others (2016 CLD 555) wherein it is held as under:
"8. In view of the law laid down by the Hon 'ole Supreme Court, it is clear that when leave to appear and defend the suit is granted to the defendant subject to any condition, it would imply that if such condition is not fulfilled and the conditional leave granting order is not complied with by the defendant, such order shall cease to have effect to the extent of grant of leave to appear and defend the suit; and in such an event, the defendant's application for leave to appear and defend the suit shall be deemed to have been' dismissed. The overall effect of the above would be that the averments and allegations made in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree under Rule (2) of Order XXXVII. CPC."
Reliance is also placed on the case titled as Haji Ali Khan & Company. Abbottabad & 8 Others vs. M/s. Allied Bank of Pakistan Limited. Abbottabad (PLD 1995 SC 352).
8. Learned counsel for the appellant has not been able to point out any illegality or material irregularity, in .the impugned order passed by the learned trial Court and has also not identified any jurisdictional defect.
9. In view of above, these appeals are dismissed being devoid of any merits with no order as to costs.
(R.A.) Appeal dismissed
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