--Suit for recovery---Cheque dishonoured on ground of insufficient balance--

 2022 C L C 1815

Civil Procedure Code (V of 1908)---

----O.XXXVII, Rr. 2 & 3---Qanun-e-Shahadat (10 of 1984), Arts. 21 & 113---Suit for recovery---Cheque dishonoured on ground of insufficient balance---Respondent launched FIR which was cancelled by the Police---Respondent/plaintiff claimed that appellant demanded and received an amount of Rs.18,00,000/- and issued a cheque which was dishonoured---Appellant's application for leave to defend was accepted and he failed to comply with the Trial Court's direction to deposit surety bond equivalent to the amount mentioned in the cheque---Trial Court recalled its order due to non-compliance and decreed the suit---Appellant contended that witnesses had not proved execution of the cheque; that cheque was not produced through Bank employees and had not been exhibited in the statement of respondent as witness; that FIR lodged by respondent was cancelled by the police after due investigation as cheque was issued by the appellant in lieu of the alleged amount; that the appellant was a wealthy person, settled abroad since long and had no need to borrow said amount; that without framing the issues ex-parte evidence was recorded by the learned trial Court; that due to "Corona" virus crises and strike of revenue officials the appellant could not deposit the surety bond within time; that the appellant was not present in the Trial Court; that Trial Court took harsh step under O.XVII, R.3, C.P.C. instead of the initiation of the proceedings under O.XVII, R.2, C.P.C.; on the date of hearing for recording of evidence, but on that date evidence was recorded, the suit was decreed and the suit was converted into execution proceedings and Court issued the show-cause notice to appellant/judgment debtor---Validity---Appellant was given by the trial Court three opportunities to deposit the surety bond but he failed to deposit the same---Trial Court adjourned the case for recording of the ex-parte evidence and on the next hearing evidence of the respondent was recorded and the suit was decreed---Appellant did not file any application to get set aside the order of Trial Court, nor any application for extension of time for deposit surety bond---Appellant, after initiation of execution proceedings, did not appear before the Court rather he filed present appeal and did not comply with its direction to deposit 50% of the decretal amount within 15 days---Appellant's conduct/attitude reflected that he was not entitled for any relief---Appellant, in his application for leave to defend, admitted that the cheque was issued by him, therefore, Trial Court had no need to record any evidence to prove such admitted fact---No plausible explanation was tendered by the appellant for non-depositing of the surety bond during the trial and non-depositing of the 50% decretal amount in execution proceedings---Record showed that, appellant's counsel was present but order of the Court was not complied with nor any application for extension of time was submitted---Appeal was dismissed accordingly.

Civil Procedure Code (V of 1908)---

----O.XXXVII, Rr. 2 & 3---Summary procedure---Judicial wisdom---Procedure for suit founded on the special documents was that defendant was not, as in ordinary suit, entitled as of right to defend the suit---Object underlying such procedure was to prevent unreasonable obstruction by defendant who had no good defence to put up---When it was a suit upon a bill of exchange/Hundi/Promissory note and the plaint/summonses were in the prescribed form, the defendant would not be allowed to appear/defend the suit unless he obtains leave from the Court.

Judgment

SAFDAR SALEEM SHAHID, J.----Through instant RFA, the appellant has challenged the validity of judgment and decree dated 26.01.2021 passed by learned Additional District Judge, Fort Abbas, whereby suit filed by Riaz Mahmood respondent.

2. Brief facts for disposal of instant appeal are that parties had relationship of trust inter se and on 01.08.2019 appellant/defendant came to respondent/plaintiff in presence of witnesses and demanded Rs.18,00,000/- for personal need with promise to return the same on 15.05.2020. On account of above said relations, respondent handed over the said amount to the appellant and the appellant issued a cheque No. 15016255 dated 15.05.2020 of Meezan Bank Fort Abbas Branch. On the said date when respondent demanded the amount mentioned above, appellant sought some more time and afterwards refused to pay the said amount to the respondent. Upon which respondent presented the cheque in the bank for encashment which was dishonoured due to insufficient funds. Respondent also lodged FIR No. 531/2020, offence under Section 489-F, PPC, against the appellant at P.S. Fort Abbas but the local police recommended the case for cancellation. Respondent demanded the amount time and again from the appellant but in vain so respondent filed a suit for recovery of said amount before learned trial Court on 30.11.2020.

3. The appellant appeared before the Court and filed application for leave to defend on various grounds but on the statement of learned counsel for respondent dated 18.12.2020 application for leave to defend was accepted and appellant was directed to deposit surety bond equivalent to the amount mentioned in the cheque but after that learned trial Court recalled the order dated 18.12.2020 due to non-compliance vide order dated 18.01.2021 and on 26.01.2021 decreed the suit vide impugned judgment and decree of even date.

4. Learned counsel for the appellant has argued that impugned judgment and decree has been passed by the learned trial Court while ignoring the relevant law and facts of the case, therefore, same is not sustainable; witnesses have not proved execution of cheque in question in lieu of the payment of the amount as alleged by the respondent; cheque in question was not produced through bank employees and it has not been exhibited in the statement of PW-1/respondent which is violation of Qanun-e-Shahadat Ordinance, 1984; respondent also lodged FIR against the appellant which was cancelled by the police after due investigation as no such amount was given to the appellant and no cheque was issued by the appellant in lieu of amount mentioned therein; the appellant was a wealthy person and was settled in Canada for the last 30 years, therefore, there was no need to borrow said amount from the respondent; without framing the issues ex-parte evidence was recorded by the learned trial Court which is nullity in the eyes of law; in fact due to Corona virus crises and strike of revenue officials the appellant could not deposit the surety bond as directed by the Court; order of the Court recalling the order dated 18.12.2020 is totally against the law as the appellant did not appear on the said date; proceedings under Order XVII, Rule 2, C.P.C. could have been initiated but Court took harsh step and proceeded under Order XVII, Rule 3, C.P.C.; the case was fixed for evidence on 26.01.2021 and on that date not only evidence was recorded but also the case was decreed and it was directed by the Court through same order that under amended Rule 10 of Order XXI of C.P.C., the suit is converted into execution proceedings and show-cause notice is issued to the judgment debtor that as to why decretal amount may not be recovered from him.

5. Learned counsel for the respondent argued that conduct of the appellant is obvious from the order sheet; on 18.12.2020 learned counsel for respondent made consenting statement that leave to defend application be allowed in the interest of justice and for speedy trial and to secure the Court time upon which said application of the appellant was allowed and direction was issued to him to deposit surety bond in the sum of Rs.18,00,000/- but appellant after obtaining three adjournments did not deposit the same; on 18.01.2021 he even did not himself appeared in the Court and the Court then struck of his defence and withdrew the order dated 18.12.2020 whereby application for leave to defend was allowed; after recording of the evidence the Court decreed the suit, therefore, there was no question of mis-reading and non-reading of evidence; even after withdrawal of the order dated 18.12.2020 the appellant did not file application for recalling the order and for extension of time for submitting surety bond under Section 148, C.P.C.; the appellant filed instant appeal but did not comply with the order of this Court pertaining to deposit of 50% of the decretal amount with learned Executing Court within 15 days and when his warrants of arrest were issued by the said Court then he made payment in the Court on 03.04.2021; all the proceedings were conducted by the learned trial Court strictly in accordance with law and cases Under XXXVII, Rules 1 and 2, C.P.C. are to be tried summarily; sufficient time was granted by the learned trial Court to the appellant to deposit the surety bond but he did not comply with the order of the Court, therefore, the Court rightly decreed the suit. Reliance in this regard is placed on the case of Happy Family Associate through Chief Executive v. Messrs Pakistan International Trading Company (PLD 2006 Supreme Court 226) and Col. (R) Ashfaq Ahmed and others v. Sh. Muhammad Wasim (1999 SCMR 2832).

6. Arguments heard. Record perused.

7. It has been noticed that conduct of the appellant is to be considered that he appeared before the learned trial court on 07.12.2020 and also submitted an application for leave to defend which was allowed by the Court on the consenting statement of learned counsel for respondent with the direction to submit surety bond in the sum of Rs.18,00,000/- but thereafter the appellant did not deposit the same and got three opportunities. The learned trial Court withdrew the order dated 18.12.2020 through which application of the appellant for leave to defend was allowed. Thereafter, the Court did not straight away decree the suit but adjourned the same for recording of the evidence and on the next date evidence of the respondent was recorded and the suit was decreed. The appellant did not bother to file any application to get set aside the order of that very Court. He also did not file any application under Order 148, C.P.C. for extension of time in order to deposit surety bond and even when the execution proceedings were initiated he did not appear before the Court rather he filed instant RFA. On 08.02.2021 this Court directed that "subject to deposit of 50% of the decretal amount with learned Executing Court within 15 days no coercive measures shall be adopted against the appellant" but he did not deposit the said amount and when his warrants of arrest were issued by the said Court then he deposited the said amount in the learned Executing Court on 03.04.2021 and thereafter filed an application with the prayer that deposit of aforesaid amount i.e. 50% of the decretal amount be considered within time. Such attitude reflects that appellant was not entitled for any relief as he failed to fulfill the conditions specified in the conditional order granted by the Courts firstly by the learned trial Court for depositing of the surety bond and then by this Court for depositing of 50% of the decretal amount. Issuance of cheque is admitted one. In the application filed by the appellant for leave to defend, he himself mentioned that he issued the cheque and the reason for issuing the cheque, he could not defend the same as he failed to deposit surety bond, therefore, to this extent that the cheque was issued by him was an admitted fact then there was no need for the learned trial Court to record any evidence to prove the same. The grounds taken by the appellant in the application for leave to defend are contrary to what he has shown during the proceedings of the suit before the learned trial Court as well as before this Court. No plausible explanation was tendered by the appellant for non-depositing of the surety bond in compliance of order of the learned trial Court dated 18.12.2020. Even otherwise, the appellant also remained unable to explain that why he has not followed the order of this Court dated 08.02.2021 and did not deposit the 50% of the decretal amount in time whereas his claim was that he is a wealthy man and he was not in need to borrow any amount from the respondent. Leave to defend was rightly refused by the Court and admission of the appellant is there regarding issuance of the cheque and the learned trial Court rightly decreed the suit. So-far-as the contention of the appellant counsel regarding this legal aspect of the proposition that the Court should have proceeded under Order 17(2), C.P.C. instead of struck off the defence of the appellant under Order 17(3), C.P.C. is concerned, the record shows that on 18.01.2021, learned counsel for the appellant was present but order of the Court was not complied with. No application for extension of time was submitted by the appellant or on his behalf by his learned counsel, therefore, order passed by the learned trial Court for refusing leave to defend was justified and it was within the ambit of law. The essence of summary procedure for suits founded on the special documents as prescribed by Order XXXVII, C.P.C. is that defendant is not, as in ordinary suit, entitled as of right to defend the suit, the object underlying this procedure being prevent unreasonable obstruction by a defendant who has no good defence to put up. Therefore, when it is a suit upon a bill of exchange, Hundi or promissory note and the plaint and summonses are in the prescribed form, the defendant shall not appear or defend the suit unless he obtains leave from a Judge as hereinafter provided so as to appear and defend the suit under Rule 2, sub-rule (2) of the Order. The words "as hereinafter provided" are plain and referred to Rule 3. So, Rules 2 and 3 must be read together. Rule 3 sub-rule (1), provides for the grounds on which the Court shall give leave to appear and defend. The defendant must make an application with affidavits which disclose such facts as would make it incumbent on the holder to prove consideration, or such other facts the Court may deem sufficient to support the application. The Court allowed the appellant to defend the suit but the appellant did not comply with the order of the Court so he was not entitled for any relief from the learned trial Court who rightly recalled the order for granting leave to defend. In this regard, reliance is placed on the case of Haji Ali Khan and company Abbottabad and 8 others v. M/s Allied Bank of Pakistan Limited Abbottabad (PLD 1995 Supreme Court 362). The appellant has failed to point out any illegality or irregularity in the impugned judgment and decree passed by learned trial Court calling for interference by this Court.