IN THE HIGH COURT OF SINDH AT KARACHI
Suit No. 1701 of 2008
Plaintiff:- Nisar Gul S/o Khattab Gul,
through Mr. Muhammad Nawaz Khan Abbasi,
Advocate for the plaintiff.
Defendants:- Nasir Khan S/o Reshim Khan,
None present for the defendant
Date of hearing 14.05.2010
Date of Judgment 02.05.2010
J U D G M E N T
SYED HASAN AZHAR RIZVI, J This summary suit has been filed by the plaintiff against the defendant under Order 37 CPC for recovery of Rs.31,22,400/-/-. Brief facts of the present suit are that the plaintiff is running a business of builty of Sugar Cane as a Contractor at Shireen Jinnah Colony, Karachi. The plaintiff knew the defendant for the last about 12/14 years. The defendant borrowed a loan of Rs.31,22,400/- for running of his business of transport and containers and promised to return the amount in stipulated time in lieu of that loan amount the defendant issued two cheuqes bearing Nos.CD-571076 and CD-571074 drawn on Bank Al-Falah, Clifton Branch, Karachi amounting to Rs.26,57,400/- and 465,000/- respectively. On the stipulated date when the plaintiff tried to present the cheques to the concern bank for encashment, the defendant stopped the plaintiff not to present the same as the amount in the account is insufficient and the defendant is trying to arrange the same for payment. Lastly on 16.1.2007 the plaintiff presented the cheques in the bank but the same were dis-honoured. The plaintiff intimated the defendant timely, but he kept the plaintiff on false hopes and failed to pay the amount of cheques despite of repeated demands and requests made by the plaintiff. The plaintiff also arranged Jirga of responsible persons but the defendant kept the plaintiff on false pretext one from the other. The defendant had also committed fraud and cheating initially with plaintiff but with 47 other innocent persons. The plaintiff lodged an FIR No.199/2007 at P.S. Boat Basin under Section 489-F PPC against the defendant. After lodging the said FIR the defendant fled away to Waziristan and absconded from the Court and subsequently challan was submitted under Section 512 Cr.P.C. On 8.7.2008 on the pointation of the plaintiff the defendnat was arrested, Police recorded the statement of the defendant. The plaintiff has filed the present suit with the following prayer:-
"It is most respectfully prayed that this Hon'ble Court may be pleased to pass judgment and decree in favour of the plaintiff and against the defendant as under:-
(a) To direct the defendant to pay the amount of Rs.31,22,400/- (Rupees thirty one lace twenty two thousand four hundred only) to the plaintiff alongwith interest at the prevailing bank rate from the date of cheques till realization of the cheques amount.
(b) Cost of the suit.
(c) Any other relief or relief(s) which this Hon'ble Court may deem fit and property under the circumstances of the case may also be granted."
2. Summons were issued by this Court to the defendant on 16.4.2009 through Superintendent Landhi Jail for 28.4.2009 as well as by bailiff while defendant was in custody. On 29.4.2009 the Assistant Registrar D-II sent Memorandum alongwith summons/ notices in duplicate of the present suit to the Superintendent Landhi Jail, Karachi for service upon the defendant which was duly received by the defendant at the Landhi Jail. On 20.5.2009 the Superintendent District Jail Malir, Karachi vide his letter dated 19.5.2009 to the Assistant Registrar D-II of this Court confirmed that the summons/notices duly served upon the defendant Nasir Khan S/o Reshim Khan confined in District Jail Malir, Karachi. The defendant received the summons on 19.5.2009 having (left thumb impression) of the defendant. On 28.5.2009 the matter was fixed before the Additional Registrar and since the statutory period for filing the leave to defend application had not expired on that date, therefore, the matter was adjourned to 4.8.2009. The defendant failed to file any application for leave to defend. On 21.10.2009 this Court declared the defendant exparte and directed the plaintiff to file affidavit-in-exparte proof. On 28.10.2009 the plaintiff filed affidavit-in-exparte proof and had produced the relevant documents before this Court on 13.11.2009 and 8.4.2010.
3. Heard the learned counsel for the plaintiff. The claim of the plaintiff for recovery of Rs.31,22,400/- in summary suit filed under Order 37 CPC. The defendant despite of service of summons willfully avoided and neglected to contest the present suit. The claim of the plaintiff is legal, lawful and has not been challenged, controverted or denied by the defendant. The plaintiff filed the affidavit-in-exparte proof produced the relevant documents before this Court and examined on oath before this Court. The averments of the pleadings and evidence of the plaintiff have gone unchallenged and unrebutted, therefore, I pass judgment and decree in favour of the plaintiff against the defendant for an amount of Rs.31,22,400/- with mark up/profit at the prevailing bank rate prescribed by the State Bank of Pakistan from the date of filing of the present suit till realization of the whole decretal amount alongwith cost of the suit.
JUDGE