ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
Suit No. 1699 of 2010
Date Order with signature of Judge
01-08-2012
Mr. Mehar Khan, advocate for the plaintiffs.
Mr. Ghulam Mujtaba, advocate for defendant Nos.1 to 3.
Mr. Muneer Ahmed Khan, advocate for defendant No.4.
O R D E R
NADEEM AKHTAR, J : Through this common order, I shall dispose of C.M.A. No.12126 of 2010, and shall record reasons for dismissal of C.M.A. No.1012 of 2011 which was dismissed by me through a short order announced on 02.07.2012.
1. C.M.A. No. 12126 of 2010 : This application was filed by defendant Nos.1, 2 and 3 under Order XXXVII Rule 3(2) CPC seeking unconditional leave to defend this suit filed by the plaintiffs against them and defendant No.4. This suit was filed on 04.11.2010 by the plaintiffs against four persons under Order XXXVII for recovery of Rs. 4,200,000.00 with markup thereon. The case of the plaintiffs is that they started a Saving / Bachat Committee (B.C.) with defendants 1 to 3 for a period of 30 months commencing from January 2007 and ending in June 2009, and that they paid their entire contribution of Rs. 6,234,000.00 to defendants 1 to 3 who undertook the obligation and liabilities to return and repay the said amount to the plaintiffs on maturity in June 2009. It is also the case of plaintiffs that defendant No.3 sold and transferred his immovable property in favour of the plaintiffs in partial satisfaction of their claim. The said property was adjusted at Rs.2,034,000.00 leaving a balance of Rs.4,200,000.000 payable by defendants 1 to 3 to the plaintiffs.
2. The plaintiffs have claimed in this suit that defendants 1 and 2 issued in their favour three cheques the total amount of which was Rs. 3,600,000.00, and defendant No.4 issued in their favour one cheque for Rs.600,000.00 on behalf of defendants 1 to 3. The total amount of all the four cheques issued by defendants 1 to 4 was Rs. 4,200,000.00. According to the plaintiffs, all the four defendants were liable to pay to them the aforementioned amount, and that all the said cheques were issued by them for consideration in order to settle their outstanding liability towards the plaintiffs. The case of the plaintiffs is that all the said four cheques issued by the defendants were dishonoured upon presentation, therefore, the plaintiffs are entitled to a decree against the defendants as prayed by them in this suit.
3. Defendant No.1 is the real son and defendant No.2 is the wife of defendant No.3. Upon service of summons, this joint application for leave to defend the suit was filed on behalf of defendants 1 to 3, which was heard and reserved by me on 02.07.2010. In support of this application, only defendant No.1 filed his detailed affidavit wherein a number of grounds were urged seeking unconditional leave. Instead of filing their affidavits, defendants 2 and 3 filed separate statements stating therein “that whatever the contents of defendant No.1 have(!) been taken in the leave to defend application the same has(!) been adopted by me ” . Since the entire defence and all the grounds were raised by defendant No.1 in his affidavit and this application contains only a formal prayer for grant of unconditional leave to appear and defend, the effect of the above statement of defendants 2 and 3 would be that the entire contents of the affidavit filed by defendant No.1 in support of this application for leave to defend have been adopted by defendants 1 to 3. Order XXXVII Rule 3(1) CPC provides that the Court shall, upon application by the defendant, give leave to appear and to defend the Suit, upon affidavits which disclose such facts as would make it incumbent on the holder to prove consideration, or such other facts as the Court may deem sufficient to support the application. This application clearly indicates that it was filed on behalf of defendants 1 to 3. Regarding the effect of non-filing of affidavits by defendants 2 and 3 in support of this application, I would like to discuss this aspect by referring to the following two reported cases :
4. In the case of Sahibzada Anwar Hamid V/S Messers Topworth Investments (Macau) Limited, through Chairman, and 5 others, reported as 2004 CLD 399, it was held by a learned single judge of the Lahore High Court that where there are more than one defendants, an affidavit of even one of the defendants along with application for leave to appear and defend was sufficient compliance of Order XXXVII Rule 3 CPC. In another case reported as 2009 SCMR 1101 (Umer Khan V/S Haji Musa Jan), leave to defend application was filed by the defendant, but the trial Court without disposing of the said application directed the defendant to file his written statement, which was accordingly filed. Later on the application for leave to defend was dismissed and the Suit was decreed against the defendant. It was held in this authority by the Hon'ble Supreme Court that if the trial Court, without adverting to the special procedure provided under the law, directed the defendant to file written statement and thereafter adopted valid and required procedure, it had not committed any illegality. In view of 2004 CLD 399 (supra), I am not inclined to non-suit defendants 2 and 3 merely on the ground that this application for leave to defend is not supported by their affidavits, especially when this application clearly shows that it has been filed on behalf of defendants 1 to 3, and it is supported by defendant No.1’s affidavit, the contents whereof have been adopted by defendants 2 and 3. In case leave to defend is granted to defendants 2 and 3, they will be entitled to file their written statement which will be verified on oath, and in such an event, valid and required procedure will be adopted without committing any illegality. The authority of the Hon'ble Supreme Court, namely, 2009 SCMR 1101 (supra), therefore, supports my above opinion which I have formed in the interest of justice and in order to avoid technicalities which have been consistently disapproved by superior Courts.
5. In their application for leave to defend, defendants 1 to 3 have alleged that, after adjustment of their liability through sale and transfer of the immovable property belonging to defendant No.3, plaintiffs’ claim was fully adjusted and as such plaintiffs have no right to claim from them any further amount. According to defendants 1 to 3, the plaintiffs had fixed the value of defendant No.3’s immovable property for the purposes of adjustment at Rs. 2,034,000.00 illegally, arbitrarily and by taking undue advantage of their position as the actual market price of this property at the relevant time was equivalent to the amount of Rs. 4,200,000.00 claimed by the plaintiffs. In order to defend themselves, defendants 1 to 3 have further alleged that defendants 1 and 3 were picked up on the night of 20.04.2010 and were not only taken into unlawful custody till morning by the officers of C.I.D. Civil Lines Centre, Karachi, but were beaten up, abused and blind folded. Defendants 1 to 3 have further alleged that all such illegal actions were taken at the behest of and in collusion with the plaintiffs to pressurize defendants 1 to 3 in order to obtain cheques from them. It is also the case / defence of defendants 1 to 3 that all the three disputed cheques signed by defendants 1 and 2 for Rs. 3,600,000.00 dated 30.06.2010 and 31.08.2010 were post-dated cheques which were obtained from them on 20.04.2010 forcibly, under coercion and undue influence in the above circumstances. Based on these assertions, it is the case of defendants 1 to 3 that the disputed post-dated cheques were without consideration and void.
6. In his submissions, Mr. Ghulam Mujtaba learned counsel for defendants 1 to 3 reiterated the above contentions raised in this application. He further submitted that the incident of 20.04.2010 was reported to the concerned S.H.O. by defendant No.3 on 22.04.2010 and 04.05.2010 through written complaints disclosing all the illegal actions taken by the plaintiffs with the connivance of C.I.D. officials, but no action was taken by the police. He also contended that before institution of this Suit on 04.11.2010 by the plaintiffs for recovery of amount of the disputed cheques, defendants 1 to 3 filed Suit No. 713 of 2010 on 08.05.2010 before this Court seeking declarations that the disputed cheques have been obtained from them under coercion, and that the same may be adjudged as void and without consideration. In their said Suit, defendants 1 to 3 have also claimed injunction and damages against the plaintiffs herein. Finally, the learned counsel submitted that the dispute between the parties is of a serious nature and the same can not be decided without recording of evidence. He prayed that this application should be allowed unconditionally as defendants 1 to 3 have successfully made out a case of plausible defense. In support of his submissions, learned counsel for defendants 1 to 3 relied upon 2009 CLC 1123 (Naveed Haider V/S Messers Noman Abid Co. Limited), 2001 CLC 653 (Asif Nadeem V/S Messers Bexshim Corporation), 1999 YLR 2071 (Messers United Steel Corporation and 4 others V/S Muslim Commercial Bank Ltd.), 1984 SCMR 568 (Abdul Karim Jaffarani V/S United Bank Limited and 2 others). The first case mentioned above is not applicable in the instant case as in the said case pay order was issued in lieu of the dishonoured cheque. Regarding the second case mentioned above, I would say that grounds of defence in the instant case are not strong enough to apply the principles contained in the aforementioned case. The third case mentioned above, wherein it was held that if in view of the defence set up by the defendant the plaintiff is required to prove consideration leave shall be granted, is also not applicable as in the instant case consideration for issuing cheques and their execution have not been denied by defendants 1 to 3. In the last authority mentioned above, it was held by the Hon'ble Supreme Court that discretion vesting in Court to subject order for grant of leave to defend to conditions is to be exercised on the facts and circumstances of each case.
7. On the other hand Mr. Mehar Khan, learned counsel for the plaintiffs submitted that this application for leave to defend is not maintainable as defendants 1 to 3 have suppressed the true facts from this Court and have not come to Court with clean hands. He invited my attention to the fact that in this application defendants 1 to 3 have denied their involvement with the Saving / Bachat Committee or having received the amount of Rs.6,234,000.00 from the plaintiffs, whereas in their Suit No. 713 of 2010, they have specifically admitted about their involvement in the said Committee and also about the contributions made therein by the parties. Particularly in paragraph 6 of their Suit No. 713 of 2010, defendants 1 to 3 have specifically mentioned that there was an agreement whereby the said amount of Rs.6,234,000.00 was refundable. Learned counsel also referred to an affidavit / undertaking executed by defendants 3 and 4 in October 2009, a copy of which has been filed by defendants 1 to 3 along with their application for leave to defend. In this affidavit / undertaking, it was admitted and undertaken by defendants 3 and 4 that they were maintaining and running the afore mentioned Committee ; that an amount of Rs.6,234,000.00 belonging to plaintiff No.1 was lying with them ; and that they were ready to pay the said amount to plaintiff No.1. The immovable property sold and transferred by defendant No.3 in favour of plaintiff No.1 in partial satisfaction of his liability was also specifically mentioned in the said affidavit / undertaking. It was specifically pointed out by the learned counsel for the plaintiffs that defendants 1 to 3 are attempting to mislead this Court as the cheques in question were executed by defendants 1 and 2 at their home and not at the C.I.D. Centre, and that the cheques were not post-dated, but were issued on the dates mentioned thereon.
8. Learned counsel for the plaintiffs prayed for dismissal of this application. He contended that strictly without prejudice to his submissions and prayer for dismissal of this application, in case leave to defend is granted to defendants 1 to 3, it should be subject to furnishing of surety. According to the learned counsel, this is necessary in the interest of justice because of the fact that the plaintiffs are not aware of any moveable or immoveable assets of these defendants, and in case a decree is passed against them, the plaintiffs will not be able to execute the same. He contended that there is a strong likelihood that a decree will be passed in favour of the plaintiffs because there is an admission of liability by defendants 1 to 3 and execution of cheques has not been denied by them.
9. In support of his submission regarding furnishing of surety, learned counsel for the plaintiffs strongly relied upon the authorities of the Hon'ble Supreme Court, namely, (i) PLD 1991 Supreme Court 976, Messers ARK Industrial Management Ltd. V/S Messers Habib Bank Ltd., (ii) PLD 1996 Supreme Court 749, Mian Rafique Saigol and another V/S Bank of Credit and Commerce International (Overseas) Ltd. and another, and (iii) 1989 SCMR 1834, Messers Sargroh Services (Pvt.) Ltd. V/S Messers Hoechst Pharmaceuticals Pakistan (Pvt.) Ltd. In the first authority mentioned above, it was held that discretion to grant leave conditionally or unconditionally is left to the Court as contemplated under Order XXXVII Rule 3(2) CPC. In the second authority mentioned above, it was held that where the defence disclosed by the defendant in his affidavit filed in support of application for grant of leave to defend is found by the Court to be illusory, or lacking bonafides or is intended to delay the proceedings or is based on allegations of vague or general nature relating to misrepresentation, fraud and coercion without any supporting material, leave may be granted on condition of either deposit of the amount claimed in the suit or on furnishing of security for the same or on such terms and conditions which the Court may deem fit. In the third and last authority mentioned above it was held that the order of High Court granting leave to defend subject to furnishing of bank guarantee and security bond were not liable to be interfered with as liability had been acknowledged.
10. After considering submissions of both the sides and examining the record, it is clear that defendants 1 to 3 have disputed their liability by claiming that an immovable property was sold and transferred in favour of plaintiff No.1 towards full satisfaction of such liability, and they have strongly alleged that the disputed post-dated cheques were obtained from them under duress. Defendants 1 to 3 have also claimed that the disputed cheques were without consideration in view of the above. In my humble opinion, the very fact that defendants 1 to 3 filed a Suit for the above reliefs prior to the filing of this Suit for recovery by the plaintiffs, clearly indicates that a dispute exists between the parties which is yet to be decided as Suits filed by both the parties against each other are subjudice. Moreover, there are allegations and counter allegations by the parties regarding the circumstances in which the disputed cheques were issued. It is also my humble opinion that all these allegations and counter allegations by the parties against each other can not be decided without allowing them to lead evidence in support of their respective claims. Defendants 1 to 3 are, therefore, entitled for leave to defend this Suit.
11. The question now arises whether leave to appear and defend should be granted to defendants 1 to 3 conditionally or should it be without any condition. In this context, I would like to refer to a very recent authority of the Hon'ble Supreme Court in the case of Muhammad Ramzan and others V/S Ghulam Qadir, reported as 2011 SCMR 659, wherein it was held that it was within the discretion of trial Court to grant leave to defend the Suit subject to imposition of condition. Similar view was taken by the Hon'ble Supreme Court in earlier authorities, namely, PLD 1991 Supreme Court 976 (supra) that discretion to grant leave conditionally or unconditionally is left to the Court as contemplated under Order XXXVII Rule 3(2) CPC ; 1989 SCMR 1834 (supra) that the order of High Court granting leave to defend subject to furnishing of bank guarantee and security bond were not liable to be interfered with as liability had been acknowledged ; and 1984 SCMR 568 (supra) that discretion vesting in Court to subject order for grant of leave to defend to conditions is to be exercised on the facts and circumstances of each case. In another recent case, namely, Meraj Agro Chemical (Pvt.) Ltd., Multan, through Chief Executive V/S Mohammad Siddique, reported as 2011 CLD 1058, it was held by a learned single judge of Lahore High Court that at the time of grant of leave to defend, imposition of condition is the discretion of the Court which should not be harsh. In the above cited Lahore High Court Case, instead of submitting bank guarantee as security which was considered to be harsh, personal surety bond or surety bond of any other person supported by document of title of immovable property was ordered.
12. From the pleadings and submissions of the parties, I have noticed that the disputed cheques were issued only by defendants 1 and 2, and defendant No.3 did not sign any of the three disputed cheques. According to their own case, complaint was filed by defendant No.3 and defendants 1 and 2 never filed any complaint before police authorities. Whereas, defendants 1 to 3 have alleged in this application that defendants 1 and 3 were taken into custody and were coerced to sign the disputed cheques while they were in custody. There appears to be an obvious contradiction in the stance taken by defendants 1 to 3. It is not their case that defendant No.2, who is a lady and is the real mother of defendant No.1 and wife of defendant No.3, was taken into custody or was coerced to sign the disputed cheques. This means that the disputed cheques were not signed by defendant No.2 while she was in custody of C.I.D. officials, as she was admittedly never taken into custody. The other point which has attracted my attention is that defendant No.3 on the one hand has claimed that he was taken into custody and was coerced to sign the disputed cheques along with defendant No.1, and on the other hand, admittedly he did not sign any cheque. Further, liability towards the plaintiffs has been not only been admitted by defendants 1 to 3, but such liability was partially satisfied by them through sale and transfer of an immovable property in favour of plaintiff No.1. In addition to the above, the most important aspect of this case is that defendants 1 and 2 have not denied execution of any of the disputed cheques. In view of my above observations and also in view of the authorities discussed above, I am of the opinion that leave should be granted to defendants 1 to 3 with some reasonable condition. This opinion is fortified by the leading case of Fine Textile Mills Ltd. Karachi V/S Haji Umar, reported as PLD 1963 Supreme Court 163. In this leading authority, the Hon'ble Supreme Court was pleased to hold that “Where the defendant discloses upon his affidavits facts which may constitute a plausible defence or even show that there is some substantial question of fact or law which needs to be tried or investigated into, then he is entitled to leave to defend. What is more is that even if the defence set up be vague or unsatisfactory or there be a doubt as to its genuineness, leave should not be refused altogether, but the defendant should be put on terms either to furnish security or to deposit the amount claimed in Court ”.
13. Defendant Nos. 1, 2 and 3 are, therefore, granted leave to appear in this Suit and to defend the same subject to furnishing of surety in the sum of Rs. 3,600,000.00 (Rupees three million six hundred thousand only) either by executing their separate personal surety bonds or by furnishing surety of any other person who should be an income tax assessee. In either case, the surety shall be supported by documents of title of immovable property / properties having value of not less than Rs.3,600,000.00. This application is disposed of in the above terms.
It is hereby clarified that the observations made in this order have been made only for the purposes of this application, and that the same shall not affect the merits of the cases of any of the parties which shall be decided on their own merits in accordance with law.
---------------------------
C.M.A. No. 1012 of 2011 : This application filed by defendant No.4 under Order XXXVII Rule 3 CPC seeking unconditional leave to defend this suit filed by the plaintiffs against him and defendants 1 to 3 was dismissed through a short order announced by me on 02.07.2012. Following are the reasons for dismissal of this application.
1. Facts of this suit have already been narrated above in detail. Against defendant No.4, the case of the plaintiffs is that he issued a cheque dated 31.08.2010 for Rs.600,000.00 on behalf of defendants 1 to 3 for consideration in order to settle their liability, which cheque was dishonoured upon presentation. This suit has been filed by the plaintiffs against all the defendants, including defendant No.4, under Order XXXVII for recovery of Rs. 4,200,000.00 with markup thereon. It may be noted that defendant No.4 did not file any Suit against the plaintiffs for cancellation of the said cheque of Rs.600,000.00 executed by him.
2. Summons were issued to all the defendants. As per bailiff’s report dated 26.11.2010, defendants 1 to 3 were served on 16.11.2010, whereas defendant No.4 could not be served due to incomplete address. The diary of 26.11.2010 of the Additional Registrar (O.S.) reflects that summons were ordered to be repeated on defendant No.4 for 23.12.2010 through bailiff and TCS as, according to bailiff’s report, defendant No.4 was not residing at the address mentioned in the plaint and summons. In compliance of Additional Registrar’s said order dated 26.11.2010, summons were issued to defendant No.4 through bailiff and TCS. The record shows that summons were dispatched through TCS to defendant No.4 on 14.12.2010 which were received by him personally on 15.12.2010 as per the certificate / delivery confirmation issued by TCS. I may mention here that the learned counsel for defendant No.4 conceded during the course of hearing that defendant No.4 was duly served through TCS personally on 15.12.2010. In view of service of summons on defendant No.4 on 15.12.2010, the prescribed period of limitation of ten days for filing application for leave to appear and defend commenced with effect from 15.12.2010. Law on this point is now well settled that service effected through any one mode has to be considered good service as laid down by the Hon’ble Supreme Court in the leading case of M/S Ahmed Autos & another V/S Allied Bank of Pakistan Ltd, reported as PLD 1990 SC 497.
3. Despite service on defendant No.4 on 15.12.2010 through TCS, the Additional Registrar (O.S.) ordered on 23.12.2010 that summons should be repeated on him for 13.01.2011 through publication. This order was passed by him perhaps due to the reason that summons could not be served on defendant No.4 through bailiff. Accordingly, summons were published in the daily ‘Nawa-e-Waqt ’ on 11.01.2011. In his diary of 13.01.2011, the Additional Registrar (O.S.) noted that summons were published in newspaper and were issued to defendant No.4 through other modes as well, and further that as per confirmation report / certificate issued by TCS defendant No.4 was served personally on 24.12.2010. As observed above, defendant No.4 was served personally on 15.12.2010 as per confirmation report / certificate issued by TCS, and not on 24.12.2010 as inadvertently noted by the Additional Registrar (O.S.).
4. The matter then came up before the Additional Registrar (O.S.) on 21.01.2011 for filing of application by defendant No.4 for leave to appear and defend. The diary of 21.01.2011 of the Additional Registrar (O.S.) shows that it was noted by him on that date that no such application was filed by defendant No.4. It was further noted by him that an application under Section 148 CPC was filed before him on 21.01.2011 by defendant No.4 for extension in time for filing application for leave to appear and defend on the ground that copies of the plaint and its annexures were not received by him. It was specifically noted by the Additional Registrar (O.S.) on 21.01.2011 that the application for extension of time was filed by defendant No.4 after the time for filing application for leave to appear and defend had already expired. In view of the above, the said application for extension of time was neither numbered nor entertained and the office was directed to fix this Suit in court on 31.01.2011 for final disposal against defendant No.4.
5. Thereafter on 31.01.2011, defendant No.4 filed an application bearing CMA No.1012 of 2011 seeking unconditional leave to defend this suit. As observed above, service on defendant No.4 was effected through TCS admittedly on 15.12.2010 when he himself received the summons. Ten days’ time prescribed in Article 159 of the Limitation Act, 1908, and in Form No. 4 of Appendix ‘B’ mentioned in Rule 2 of Order XXXVII CPC for filing application by defendant No.4 for leave to appear and defend expired on 25.12.2010. Thereafter winter vacations of this Court commenced with effect from 26.12.2010. Under Section 4 of the Limitation Act, 1908, defendant No.4 ought to have filed his application for leave to appear and defend on the opening day after winter vacations, which was 09.01.2011 as per the Office Order dated 20.12.2010 issued by the Registrar of this Court.
6. The authority of the Hon'ble Supreme Court, namely, PLD 1990 SC 497 (supra), is fully applicable in this case, and in view thereof, defendant No.4 was served on 15.12.2010. Resultantly, the prescribed of limitation of ten days for filing application by him for leave to appear and defend expired on 25.12.2010. As a matter of sheer indulgence, if the period of limitation is computed from the date of publication of summons in newspaper on 11.01.2011, even then ten days’ time for filing application for leave to appear and defend expired on 21.01.2011. The defendant No.4 did not file his application for leave to appear and defend either or 25.12.2010 or on 21.01.2011, but filed the same on 31.01.2011 much after expiration of the prescribed period of limitation. Thus, defendant No. 4’s application for leave to appear and defend was miserably barred by time. Moreover, defendant No.4 did not file any application for condonation of delay in filing application for leave to appear and defend. Without an application for condonation of delay, defendant No.4’s time barred application for leave to appear and defend could not be entertained in any case.
7. In support of the view expressed by me in the preceding paragraph, I would like to refer to two authorities of the Hon'ble Supreme Court on the points of filing of application within the prescribed period of limitation and condonation of delay. In the case of Messers Qureshi Salt & Spices Industries, Khushab and another V/S Muslim Commercial Bank Limited, through President, and 3 others, reported as 1999 SCMR 2353, it was held by the Hon'ble Supreme Court that delay under Section 5 of the Limitation Act can not be condoned without application as the delay of each day is to be explained before a Court can condone the delay, and therefore, the same can not be done unless an application stating sufficient reason for condonation is made. In another authority reported as 2006 SCMR 631 (Shahid Pervaiz alias Shahid Hameed V/S Muhammad Ahmad Ameen), it was held by the Hon'ble Supreme Court that it is a settled principle of law that valuable right accrues to the other side by lapse of time and each day’s delay has to be satisfactorily explained.
8. Learned counsel for defendant No.4 contended that the delay in filing application for leave to appear and defend is liable to be condoned as defendant No.4 was served without copy of the plaint. In view of the authority of the Hon'ble Supreme Court, namely, PLD 1990 SC 497 (supra), and also in view of the discussion in paragraphs 5, 6, and 7 above, this contention is without any substance. Regarding learned counsel’s contention that copy of the plaint was not received by defendant No.4, I have noted that summons dated 11.12.2010 issued through TCS by the office in Form No.4 of Appendix ‘B’ under Order XXXVII Rule 2 CPC show that copy of the plaint was attached thereto. When summons were admittedly received by defendant No.4 on 15.12.2010, he must have received the same along with copy of the plaint. If it is assumed that defendant No.4 did not receive copy of the plaint, as alleged by him, he became aware on 15.12.2010 at least of the fact of filing of this Suit against him. Therefore, it was his duty to approach the court promptly for obtaining copy of the plaint. Instead of acting vigilantly, he filed the application on 21.01.2011 (after about five weeks of service) under Section 148 CPC seeking extension in time for filing application for leave to appear and defend on the ground that copies of the plaint and its annexures were not received by him. The said application can not be deemed to be bonafide or justified in view of the above. I may once again point out that the learned counsel for defendant No.4 conceded during the course of hearing that defendant No.4 was duly served through TCS personally on 15.12.2010. This contention also appears to be baseless and without substance and is therefore rejected.
9. As mentioned above, on 21.01.2011 this matter was ordered to be fixed in court on 31.01.2011 for final disposal against defendant No.4. Due to this reason, this application for leave to appear and defend (CMA No.1012 of 2011) filed by him on 31.01.2011 came up before the court for orders on many dates till 20.04.2011, and at the same time the case was also fixed on every date for final disposal against him. On 20.04.2011 when this application filed by defendant No.4 was fixed for orders and the suit was also fixed for final disposal against him, it was ordered that this application be fixed for hearing on the next date. It may be noted that notice on this application was never ordered.
10. When this Suit came up before me on 02.07.2012, it was fixed for hearing of this application filed by defendant No.4 as well as for final disposal against him in pursuance of the order passed by the Additional Registrar (O.S.) on 21.01.2011. As this application for leave to appear and defend filed by defendant No.4 after thirty six (36) days of expiration of the prescribed period of limitation is hopelessly barred by time and no application for condonation of such long delay was filed by him, this application is not maintainable in law and is liable to be rejected. C.M.A. No.1012 of 2011 filed by defendant No.4 seeking unconditional leave to appear in this Suit and to defend the same is therefore dismissed.
11. It is settled law that when a defendant fails to appear or fails to obtain leave to defend in response to a summons served in Form No.4 provided in Appendix ‘B’ to CPC, or where the Court refuses to grant leave, the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree. In such an event, the Court shall pass a decree in favour of the plaintiff against the defendant. This view is fortified by the authorities of the Hon'ble Supreme Court, namely, PLD 1995 Supreme Court 362 (Haji Ali Khan & Company, Abbottabad and 8 others V/S M/s. Allied Bank of Pakistan Limited, Abbottabad) ; 1996 SCMR 1530 (Naeem Iqbal V/S Mst. Zarina), and 1999 SCMR 2832 (Col. (Retd.) Ashfaq Ahmed and others V/S Sh. Muhammad Wasim).
12. The application for leave to appear and defend field by defendant No.4 has already been dismissed. In view of the authorities referred to above and also as the Suit is fixed for final disposal against defendant No.4, the Suit is decreed with costs under Order XXXVII Rule 2(2) CPC in favour of the plaintiffs against defendant No.4 in the sum of Rs. 600,000.00 (Rupees six hundred thousand only) with interest / markup thereon as prescribed by Order XXXVII Rules 2(2)(a) and 2(2)(b) CPC.
Judge
ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
SUIT NO. 1699 of 2010
Date Order with signature of Judge
For hearing of C.M.A. Nos. :-
1. 5907/2012 (U/O XXXIX Rules 1 & 2 CPC R/W Section 151 CPC)
2. 1012/2011 (U/O XXXVII Rule 3 CPC)
3. 12126/2010 (U/O XXXVII Rule 2 CPC)
4. 12127/2010 (U/S 10 CPC)
(A/W Suit No.713/2010)
(Attention is respectfully invited to the court’s order dated 26.06.2012)
02-07-2012 :
Mr. Mehar Khan, advocate for the plaintiffs.
Mr. Ghulam Mujtaba, advocate for defendants No.1 to 3.
Mr. Muneer Ahmed Khan, advocate for defendant No.4.
-.-.-.-.-.-.-.-.
1. Deferred at the request of the learned counsel for the plaintiffs. Learned counsel for defendants No.1 to 3 waives notice of this application and seeks time to file counter affidavit in reply thereto as the learned counsel for the plaintiffs has supplied copy of this application to him today.
2. For the reasons to be recorded later, this application for leave to appear and defend filed by defendant No.4 is dismissed.
3. Heard arguments of the learned counsel in respect of this application for leave to appear and defend filed by defendants 1 to 3 . Reserved.
4. Learned counsel for defendants 1 to 3 does not press this application as he has argued his application for leave to appear and defend (listed today at Serial No. 3) which has been heard and reserved. Accordingly, this application (CMA No. 12127 of 2010) is dismissed as not pressed.
JUDGE
Abdul Salam/P.A
ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
SUIT NO. 713 of 2010
Date Order with signature of Judge
1. For hearing of C.M.A No.4739/2010 (U/O XXXIX Rules 1 & 2 CPC). 2. For examination of parties / settlement of Issues.
02-07-2012
Mr. Ghulam Mujtaba, advocate for plaintiffs.
Mr. Mehar Khan, advocate for defendants No.1 and 2.
Mr. Muneer Ahmed Khan, advocate for defendant No.3.
-.-.-.-.-.-.-.-.
1. Learned counsel for the plaintiffs does not wish to press this application in view of the fact that the cheques in question can not be presented now as they have become stale. This application stands dismissed as withdrawn.
2. Deferred.
JUDGE
Abdul Salam/P.A