1994 PLP 1031 (CLC)

‑‑‑‑S. 96 & O.XXXVlI, Rr. 1, 2‑‑‑Decision on special oath‑‑‑Suit for recovery of amount on basis of cheques‑‑‑Suit for recovery of amount on basis of cheques was decreed against which judgment‑debtor had filed appeal ‑‑‑While arguments on appeal were in progress, parties agreed on a decision on basis of a statement to be made on special oath by plaintiff/respondent on the amount due to him from defendant/appellant ‑‑‑ Appellant had stated that if respondent was to depose on Holy oath that disputed amount was due to him, he would not press appeal ‑‑‑Respondent to whom proposal was made expressed his willingness to make required statement on special oath‑‑‑On taking special oath on Holy Qur'an by respondent, suit was decreed accordingly. Amjad Hussain Syed for Appellant. Respondent in person. Respondent instituted a civil suit in summary jurisdiction under Order XXXVII of Civil P.C. for recovery of Rs.14,586 on the basis of two crossed cheques issued by the appellant. Initially, the suit was decreed ex parte by the trial Court on 16‑11‑1987. The application by the appellant for setting aside of the ex parte decree under Order XXXVII, rule 4 of Civil P.C. was allowed by the trial Court, subject to payment of Rs.1,000 as costs by the appellant to respondent. Upon setting aside of the ex parte decree, plaintiff was cross examined at the instance of the appellant. Thereupon, the appellant gave his defence evidence. On 13‑3‑1990, the suit was again decreed in the above sum in favour of respondent. Appellant filed an appeal from the decree of the trial Court. 'It was admitted to hearing on 14‑10‑1991 and execution of the impugned decree was stayed. The appeal was argued at length by Mr. Amjad Hussain Syed, Advocate yesterday. It was adjourned to today's date of hearing for hearing of remaining arguments from him, mainly on the plaint, whether suit under Order XXXVII of Civil P.C. could be instituted on the basis of crossed cheques. Learned counsel was of the view that the crossed cheque was not a bill of exchange and, .therefore, the suit on its basis could not have been instituted under Order XXXVII of Civil P.C. There were a few judgments against the contention off` the appellant. These were reported in AIR 1963 Calcutta 36, PLD 1976 Karachi 116, 1989 MLD 4181 (Lahore). While the arguments were in progress, parties to the appeal agreed for a decision of it on the basis of a statement to be made on special oath by the respondent‑Muhammad Aslam Shah on the amount due to him from the appellant. It was stated by‑ the appellant that if the respondent was to depose on Holy oath that a sum of Rs.11,500 was due to him, the appeal preferred by him shall not be pressed. At this stage, it may be noted that the principal amount alleged advanced by the respondent to the appellant was Rs.11,

500. Rest was an accumulated interest /and the cheques were issued both for the principal and the accumulated interest. In order to cut short the matter, the amount of interest was excluded from the controversy with the express agreement of the respondent. Proposal made by appellant was conveyed to the respondent. Its import and implications were also explained to him. He expressed his willingness to make the required statement on special oath. Thereupon, he took Holy Qur'an in his hands and stated on it that excluding the interest, a sum of Rs.11,500 was really due to him from the appellant. Upon this view, appeal is partly allowed and judgment and decree of the trial Court is modified and the suit is decreed in favour of the plaintiff for the sum of Rs.11,500 only. Since the matter was decided on special oath, parties shall bear their own costs in this Court. Records shall be returned. H.B.T./A‑531/L Appeal partly allowed.