1990 PLP 1243 (CLC)

Date of hearing: 10th August, 1989. MUKHTAR AHMAD JUNEJO, J.‑‑This High Court appeal calls in question the judgment and the decree passed by learned Single Judge decreeing summary Suit No.llll of 1988 in favour of Respondent M/s. Riazeda (Pvt.) Limited for recovery of an amount of Rs.1,92,909.96 Ps. from appellant M/s. Razzaq & Company, after dismissing their application for leave to defend.

2. For exporting 1,625 bags of Liquorise Roots to LE HAVRE (France) the appellants approached the Respondents who are local agents of a foreign carrier namely Compagnia Di Navigazione Merzario of Italy. Accordingly in October, 1988 the exported goods were shipped for Le Havre through a vessel "White Star" of said Carriers for being delivered to _M/s. Establishment Bontont in France at Port Le Havre. As against this, the appellants passed on an undated cheque of Rs.1,92,909.96 Ps. to the Respondent drawn on Allied Bank of Pakistan Timber Market Branch Karachi. Said cheque when presented to said branch, by bankers of the Respondents, was dishonoured. This led the Respondents to file in this Court Suit No.1111 of 1988 under Order 37, C.P.C. against the Appellants for recovery of Rs.1,92,909.96 Ps.

3. With their application for leave to defend, the appellants filed an affidavit of Abdul Razaq. In his affidavit, Abdul Ra7aq proprietor of the appellants did not deny the facts as given in para.2. Main plea taken in the affidavit was, that the undated cheque was given to the Respondent as security and that the cheque was to be encashed by the Respondents only after the exported goods reached the port of destination and after the payment was received from the foreign buyer. It was alleged that the Respondents in utter breach of the agreement put a date on the cheque and presented the same to the bank even before sailing of the vessel from the port of Karachi. It was further alleged that the exported goods were damaged and got rotten during the voyage due to negligence, carelessness and misconduct by the Carriers and their employees and agents, with the result that the consignee of the goods in France refused to accept the same on the ground that the goods were totally damaged and had been rendered unfit for the purpose for which they were shipped. Abdul Razaq added that the appellants had suffered a loss of Rupees Thirteen lacs which amount was payable to them by the Respondents and their principals. On these grounds appellants sought leave to defend the suit.

4. Allegations made by the appellants were controverted in the counter affidavit of Shiraz who is Director of the Respondent Company.

5. After hearing Counsel for the parties, learned Single Judge under the impugned order dated 13-3‑1989 declined the leave to defend. Consequently the suit, being summary in nature, was decreed with costs but without any interest. Hence this appeal. .

6. Mr. Abdul Aziz Shaikh learned counsel for the appellants argued that the cheque delivered to the Respondents was not meant to be got encashed before arrival of the consignment in safe and sound condition in France and before release of the documents for payment from the foreign consignee, as per such understanding between the parties. No any such document containing understanding is produced before us or was produced before the learned Single Judge. As regards counter‑claim of the appellants in respect of damage to the consignment exported, that is not garmane to the point at issue viz. about grant or refusal of the leave to appeal.

7. If the pleas being raised by the appellants are accepted for the purpose of granting leave to defend, that would change entire complexion of the suit, making it an ordinary suit and thus frustrating the very purpose for which Order 37 was incorporated in the Code of Civil Procedure, containing the provisions comparable to similar provisions in the Rules of the Supreme Court in England. A The purpose of legislating the provisions contained in Order 37 of the Code of Civil Procedure, has been explained by the Supreme Court of Pakistan in the case of Abdul Karim Jafrani v. United Bank Limited 1984 S C M R 568 in the following words:‑ "The overall object envisaged by the legislature was to provide for expeditious disposal of litigation involving commercial transactions of a particular nature by a summary procedure so that the defendant does not have the means open to exploitation in the ordinary procedure for trial of suits to prolong the litigation and prevent the plaintiff from obtaining an early decision by raising untenable and frivolous defenses.

8. We find that the appellants have not made out a case warranting interference in exercise of discretion by learned Single Judge. Accordingly this B appeal stands dismissed in limine. These are the reasons for our short order dated 10‑8‑1989 by which we dismissed this appeal in limine. AA./R‑122/K Appeal dismissed.