2007 PLP 468 (YLR)

Brief facts of the case are that respondent filed a suit on 6-10-2004 under Order XXXVII, C.P.C. against the appellant for the recovery of a sum of Rs.5,00,000 on the basis of a cheque dated 19-10-2002. On 27-11-2004 appellant filed an application seeking leave to appear and defend the suit. In the said application it was pleaded that he received the summons on 24-11-2004 without copy of the plaint. However denied his connection with the suit and also denied his any liability for the payment. This application was contested by respondent No.1. Respondent No.2 was however proceeded against ex parte vide order dated 4-1-2004. After hearing arguments the learned trial Court vide order dated 8-2-2005 dismissed the application seeking leave to appear and defend the suit. The learned trial Court after recording evidence of respondent No.1/plaintiff decreed the suit vide judgment and decree dated 3-3-2005. The same is being assailed through the instant appeal.

2. Learned counsel for the appellant contends that the appellant had specifically mentioned in his application dated 27-11-2004 that copy of the plaint was not delivered to him along with the summons therefore time would not start running against him for filing such an application. It is further argued that denial by the appellant of having no connection with the suit and his liability to pay the claimed amount clearly made out a plausible defence which required grant of necessary leave.

3. On the other hand, learned counsel for respondent No.1 has defended the impugned decree by contending that no plausible defence at all was disclosed by the appellant in his said application, therefore, the same was rightly dismissed.

4. We have heard the arguments of the learned counsel for the parties.

5. The two relevant paragraphs of the appellant's application for leave to defend are reproduced for ready reference:- Urdu Para Page 469 According to the appellant's own case notice was received by him on 24-11-2004 and he filed the said application on 27-11-2004. Meaning thereby that he was still left with at least seven days to procure copy of the plaint if he had not received the same with the summons and file a proper application disclosing some plausible defence but no such effort was made by the appellant. In his said application appellant has neither denied that the cheque in question belongs to his account or it was not signed by him or it was procured through some fraudulent means or for that matter any other plausible defence. The above quoted paragraph of his application does not disclose any defence much less a plausible one.

6. Today during arguments the appellant was also present in Court. He tried to introduce a draft amounting to Rs.500,000 in order to contend that in lieu of the said cheque draft of the same amount was given by him to respondent No.1 therefore his liability with respect to the disputed cheque stands discharged.

7. We are afraid, this is a summersault taken by the appellant at this stage, which was never his case in his application for leave to appear and defend. Even this ground is not incorporated in the memorandum of appeal, therefore, the same can only be termed to be an afterthought and nothing else.

8. For what has been stated above, we find no merit in this appeal, which is accordingly dismissed. H.B.T./S-194/L Appeal dismissed.