IN THE HIGH COURT OF SINDH, AT KARACHI
I.A No. 27 of 2013
Present:
Mr. Justice Abdul Maalik Gaddi
Hassan Pervez ..….………………………….. ………………………Appellant
Versus
Shehzad Ayub and another……… ….………………………….Respondents
Date of hearing 30.01.2014
Date of order 03.02.2014
Mr. Raja Masood Ahmed Qazi, advocate for the appellant
Mr. Ch. A. Rasheed, advocate for the respondent No.1.
************************
O R D E R
Abdul Maalik Gaddi,J Through this appeal, the appellant has assailed the legality and propriety of the judgment and decree dated 31.5.2013 passed by the learned III-Additional District Judge Karachi East in Summary Suit No.83 of 2012 under Order XXXVII CPC filed by respondent No.1 for recovery of Rs.48,25,000/- (Rupees Forty Eighty Lac and Twenty Five Thousand Only) whereby the learned trial Court after hearing the parties decreed the suit with interest of 10% till the amount is realized.
2. Brief facts leading to filing of the above appeal are that the respondent No.1/Plaintiff has filed the Summary Suit under Order XXXVII CPC for recovery of amount of Rs.48,25,000/- against the appellant/defendant mentioned in it that the respondent No.1/Plaintiff has business relationship with the appellant/defendant and due to said reason, the appellant/defendant issued five cheques bearing Nos. (i) 5248363 amounting Rs.1100,000/-, (ii) 5244212, (iii) 5253822, (iv) 5253827 and (5253828, total amounting to Rs.48,50,000/- on different dates and these cheques were dishonoured when presented before the bank. It is averred that the respondent No.1/plaintiff contacted to the appellant/defendant and disclosed about the bouncing of the cheques but the appellant/defendant statured delaying tactics and giving any reply on phone calls as well as on personal contacts, however, the respondent No.1/plaintiff tried his level best to take his money back but all such hops went into vain when the appellant/defendant flatly refused to return the amount of respondent No.1/plaintiff, hence the respondent No.1/plaintiff reported the matter to SHO P.s. Jamshed Quarter, who did not lodge the FIR against the appellant/defendant. It is averred that thereafter the respondent No.1/plaintiff filed application under Section 22-A Cr.P.C. before the Hon’ble District & Sessions Judge, Karachi East and then the SHO, P.S. Jamshed Quarter lodged the FIR bearing No.552 of 2012 under Section 489-F PPC against the appellant/defendant. The respondent No.1/plaintiff has filed the instant suit with the following prayer:
(a) To pass the judgment and decree for recovery of Rs.48,25,000/- (Rupees Forty Eight Lac and Twenty Five Thousand only) in favour of the plaintiff and against the defendant, plus interest at the rate of 10% per annum.
(b) Cost of the suit and/or any other relief, which this Court may deem fit and proper in the circumstances of the case may be granted.
3. From the record it appears that after institution of Summary Suit, notice was sent to appellant and on 9.2.2013 the appellant has filed application under Order XXXVIII Rule 3 CPC praying therein to alow him for leave to defend this case with a plea that the allegations mentioned in the plaint are false and fabricated. While elaborating his claim the appellant has taken the plea that he has no concern with the business transaction with the respondent and plaintiff/respondent No.1 even did not dis-close which type of business he was run with the appellant. In his application he has also stated that Arsalan Pervez has business dealing with the respondent No.1 and plaintiff/respondent No.1 has also lodged FIR No.145 of 2012 under Section 489-F, P.S. Frere against the brother of appellant made the same type of allegations and another Fir No.558 of 2012 under Section 489-F, P.S. Jamshed Quarter against the Uncle of the appellant namely Barkatullah Siddiqui on same footings but in all above FIRs changed his facts contents. It is also the case of the appellant that Arsalan Pervez has also paid the amount which was against due to him.
4. From record it appears that on 26.4.2013 the learned trial Judge after hearing the parties on application under Order 37 (3) CPC granted conditionally leave to defend subject to furnishing security for the suit amount before the Nazir of the Court within 15 days. Admittedly, the required security was not furnished, however, in this regard an application for further time was sought by appellant, which was refused as no cogent reason was assigned in it and the learned trial Judge after having perused the record decreed the suit filed by the respondent No.1, hence this appeal.
5. I have heard the parties advocates and perused the record with their due assistance. 6. Heard parties advocates and perused the record.
6. Learned counsel for the appellant argued that the impugned judgment and decree are erroneious in law and facts on the ground that the application for leave to defend the conditionally granted by the trial Court but due to some unavoidable circumstances required security could not furnish before the trial Court within time and in this regard an application for further grant of time dated 25.5.2013 was moved but the same was rejected vide order dated 31.5.2013. As such according to him he has been deprived to place his case by leading evidence during trial. He has further submitted that the order passed by the learned trial Court is against the law and fact and has been passed in a hasty manner without giving him any fair opportunity to lead his evidence. He has further submitted that he filed the present appeal and during proceeding this appeal though this Court vide order dated 12.11.2013 directed the appellant to deposit the decretal amount with the Nazir of this Court within one month but according to him in compliance of the said order he has offered security in the sum of Rs.48,25,000/- (Rupees Forty Eight Lac Twenty Five Thousand only) by depositing Indenture of Lease in respect of Flat No.602-B, 6th Floor, measuring 350 Square Feet on Plot No.111, Roshan Colony, Manikji Road, Soldier Bazar No.2, Karachi, therefore, he was of the view that the said offered property which equivalent to the decretal amount may be accepted. During the course of argument, counsel of the appellant has reiterated the same facts and grounds which he has urged in his application under Order 37 Rule 3 CPC as well as in his Memo of Appeal, however, in support of his arguments he has placed reliance on the following case law:
(1) Sher Ali Akhtar v. Messrs Habib Bank Limited and another (1992 CLC 1964)
(2) Manzoor Ahmed v. Muhammad Iqbal (1994 SCMR 560)
(3) Agha Jee Cotton Factory v. Hakim Trading Company Rahimyar Khan (1995 CLC 302)
(4) Hazoor Bakhsh v. Ghulam Farid (1996 MLD 704)
(5) Syed Sharaf Ali Shah v. Syed Liaquat Ali Shah (2000 CLC 1646)
(6) Zahoor Ahmed v. Asif Hussain (2001 MLD 1759 Peshawar)
(7) Balooch Akbar Khan v. Muhammad Hussain and another (2004 CLC 356)
(8) Muhammad Ali Nawaz v. Sh: Muhammad Aslam (PLD 2010 Lahore 219)
7. Conversely, learned counsel for the respondent No.1 has controverted the submissions made by learned counsel for the appellant and submitted that instant appeal has been filed only to gain time and to get undue benefit of the money to be paid by the appellant further to prolong the execution of the decree passed by the learned trial Court. Per learned counsel, the trial Court after having considered all assertions made by the appellant passed the judgment and decree, which is according to him passed in accordance with law leaving no room of illegality or infirmity. He has further submitted that the appellant neither has complied the order of the trial Court dated 26.4.2013 nor has complied the order passed by this Court dated 12.11.2013 in which the appellant himself was agreed to deposit the decretal amount before Nazir of this Court within one month. The said order has not been complied, therefore, he was of the view that this appeal is not maintainable which may be dismissed. In support of his argument, he has relied upon the following judgment:
(1) 2011 SCMR 659
(2) Muhammad Jaffar vs. The State (PLD 1984 Karachi 127)
(3) Iftikhar Ahmad vs. Muhammad Younus Khan (1982 CLC 2114)
(4) 1994 CLC 1526.
8. I have
J U D G E