2014 PLP 193 (CLD)

ABID AZIZ SHEIKH, J.

This is an appeal under section 96 of the Code of Civil Procedure, 1908 (C.P.C.) against the judgment and decree dated 14-12-2009 passed by the learned Additional District Judge, Rajanpur whereby the suit of the appellant for recovery of Rs.46,25,000 filed under Order XXXVII, Rules 1 and 2 of C.P.C. was dismissed.

2. Briefly, the facts in this case are that the appellant/ plaintiff filed a suit for recovery of Rs.46,25,000 on the basis of promissory note dated 17-4-2009. It is averred in the plaint that the appellant belongs to a landlord family whereas respondent deals in pesticides, as such, they became acquainted with each other which relation developed into friendship and mutual confidence. It is claimed that respondent/defendant obtained a loan of Rs.46,25,000 from the appellant/plaintiff for purchasing pesticides, which amount was paid in presence of Muhammad Arif Khan and Muhammad Yousaf and the respondent/defendant also executed the promissory note and receipt dated 17-4-2009 to repay loan amount within one month but he failed to do so, hence the suit was filed.

3. The respondent/defendant despite notice failed to appear in the Court to defend the suit and was accordingly proceeded against ex parte on 17-9-2009. The learned Additional District Judge after recording statements of the witnesses in ex parte evidence, dismissed the suit of the appellant/plaintiff vide judgment and decree dated 14-12-2009. Hence this appeal.

4. This appeal was admitted for regular hearing on 19-1-2010. Despite service of notice and subsequently citation in the press, the respondent did not opt to appear before the Court, hence he was proceeded against ex parte vide order of this Court dated 25-1-2012.

5. The learned counsel for the appellant argued that the suit was filed on the basis of a promissory note which was a negotiable instrument and presumption of truth was attached to such document under section 118 of the Negotiable Instruments Act, 1881. Further submits that in addition, the appellant produced four witnesses who supported the execution of the promissory note and receipt of payment. Submits that admittedly respondent was proceeded against ex parte and no application for leave to defend was filed on his behalf, therefore, the claim of the appellant in the plaint was liable to be admitted and decreed as prayed for. Adds that the impugned judgment and decree is result of patent illegality.

6. We have considered the submissions made by learned counsel for the appellant/plaintiff and also gone through the impugned judgment as well as record.

7. The appellant/plaintiff filed suit for recovery of Rs.46,25,000 under Order XXXVII, Rules 1 and 2 of the Code of Civil Procedure, 1908, on the basis of promissory note No.6 and receipt dated 17-4-2009 produced as Exh.P-1 and Exh.P-2. The aforesaid pro note was executed in presence of Sardar Muhammad Arif Khan and Rana Muhammad Yousaf who appeared as P.W.2 and P.W.3 to support the execution of promissory note and receipt. The aforesaid promissory note and receipt were written by Rao Muhammad Akram who also appeared as P.W.4. The appellant/plaintiff himself appeared as P.W.1 to support his contention in the plaint. All the witnesses supported the contents of the plaint and execution of the aforesaid documents. Admittedly, the respondent/ defendant did not appear in the Court to defend the suit and also not filed any petition for leave to defend as required under Order XXXVII, Rule 2 of the Code of Civil Procedure, 1908. At this juncture, it is expedient to reproduce the provisions of Order XXXVII, Rule 2(2) as under:-- "In any case in which the plaint and summons are in such forms, respectively, the defendant shall not appear or defend the suit unless he obtains leave from a Judge as hereinafter provided so to appear and defend; and, in default of his obtaining such leave or of his appearance and defence in pursuance thereof, the allegations in the plaint shall be deemed to be admitted, and the plaintiff shall be entitled to a decree".

8. In view of aforesaid provisions, since the respondent/defendant had not filed any application for leave to defend, the learned Additional District Judge was required to decree the suit as provided in Rule 2(2) ibid. In our view, in such eventuality, it was not even necessary for the appellant/plaintiff to give ex parte evidence. In this regard, reliance is placed on the law laid down by the august Supreme Court of Pakistan in case of Haji Ali Khan v. A.B.L. (PLD 1995 SC 362), Ahmad Autos v. A.B.L. (PLD 1990 SC 497), Naeem Iqbal v. Mst. Zarina (1996 SCMR 1530), Ashfaq Ahmad v. Muhammad Waseem (1999 SCMR 2832).

9. We have gone through the impugned judgment and decree passed by learned Additional District Judge and the reasons which seem to weigh with the learned Judge for dismissing the suit is that the plaint is silent about, the place of payment, mode of payment and the monetary condition of the appellant to make such payment. In our view, the learned Additional District Judge need not have gone into these issues. Section 118 of the Negotiable Instruments Act, 1881 provides as under:-- "Presumption as to negotiable instrument of consideration.

Until the contrary is proved, the following presumptions shall be made:-- (a) that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred for consideration". The above section makes it clear that consideration in respect of negotiable instrument is to be presumed under the law unless presumption has been rebutted by the respondent/defendant. Since as already discussed, there was no application filed by the respondent/defendant for leave to defend the suit under Rule 2 of Order XXXVII, C.P.C. obviously the presumption referred to in section 118 of the Negotiable Instruments Act, 1881 was not rebutted in the present case. Therefore, the findings and reasons given by learned Additional District Judge are erroneous which in no way should defeat the claim of the appellant. In this regard, reliance is placed on the case reported as Muhammad Haneef Sheikhani v. Muhammad Khalid Shafi (2009 CLD 1129), Malik Liaqat Ali v. Muhammad Sharif (2009 CLD 1313), Muhammad Ishaque v. Rana Dilbar Hussain (2010 CLC 1059), Muhammad Aziz ur Rahman v. Liaqat Ali (2007 SCMR 1820).

10. Upshot of the above discussion is that this appeal is allowed and the findings arrived by the learned Additional District Judge in the impugned judgment dated 14-12-2009 are set aside and the suit is decreed for an amount of Rs.46,25,000 with interest at the rate of 6% per annum in accordance with sections 79 and 80 of Negotiable Instruments Act, 1881 from the date of institution of suit till the date of decree. The cost of this appeal shall, however, be borne by the appellant as the respondent neither defended the suit before the learned trial Court nor before this Court in this appeal.

11. Requisitioned record be remitted back to the concerned Court forthwith. KMZ/A-136/L Appeal allowed.