2003 PLP 460 (CLD)

Ata‑ul‑Mohsin Lak for Appellant. Abdul Latif Khan for Respondent. Date of hearing: 21st May, 2002. Respondent Ch. Ahmad Ali upon dishonouring of Cheque No. 919413 dated 3‑9‑2001 filed a suit on 26‑9‑2001 for recovery of Rs.24,000 under the provisions of Order XXXVII, Civil Procedure Code against the appellant.

2. It was pleaded in the plaint that appellant borrowed a sum of Rs.24,000 from the respondent‑plaintiff for a period of 6 months and upon demand, appellant gave the abovesaid cheque for the borrowed amount to the respondent. And that cheque upon presentation to the Bank was dishonoured. Hence the suit. The appellant was served through proclamation in daily "WAFAQ" dated 21‑10‑2001. The appellant on 1‑11‑2001 filed an application for leave to appear and defend the suit denying the loan. He, however, admitted issuance of a blank cheque but claimed that the same was issued in favour of the respondent as security for payment of the price of fertilizer purchased by the appellant from Muhammad Latif a relative of the respondent. It was also claimed by the appellant in this application that two receipts for Rs.25,000 and Rs.40,000 and a promissory note were also obtained from the appellant in connection with payment of the price of fertilizer. Appellant also alleged that he has settled the entire fertilizer account in presence, of "Panchayat" and paid the outstanding price thereto on 3‑4‑2002 but despite payment, respondent did not return the said cheque and the promissory note. Respondent filed a reply thereto rebutting the allegations in leave application raising preliminary objection that the leave application was barred by time.

3. On 22‑11‑2001, the learned Additional District Judge, Depalpur dismissed appellant's application for leave to appear and defend the suit and consequently decreed the suit of the respondent. Hence the present regular first appeal.

4. Learned counsel for the appellant reiterated the contents of the application for leave to appear and defend the suit and further contended that it was a matter of evidence qua the obtaining of loan and issuance of cheque. He, thus, claimed that the appellant had a plausible case and the learned Additional District Judge, Depalpur erred at law by rejecting appellant's leave petition and decreeing the suit. Contrarily, learned counsel for the respondent relying upon the case of "Mushtaq Ahmed Qureshi v. The State" reported as PLD 1984 Lahore 283, stated that since the issuance and execution of the cheque has been admitted by the appellant, therefore, presumption of truth is attached to allegations raised by the respondent. It was further contended that no document whatsoever of payment of price of the fertilizer or non‑obtaining of loan was produced by the appellant.

5. I have considered the submissions of learned counsel for the parties and have also examined the record. Suit was filed by respondent against the appellant invoking summary jurisdiction of the Court under Order XXXVII of Civil Procedure Code on 26‑9‑2001. On 10‑10‑2001, the appellant was ordered to be served through issuance of proclamation. Accordingly, proclamation was published in daily "WAFAQ" dated 21‑10‑2001. Appellant filed petition for leave to appear and defend the suit on 1‑11‑2001, which is obviously barred by one day. In view thereof, appellant's application for leave to appear and defend the suit was liable to be dismissed for being beyond the period of limitation as appellant had neither filed any application for condonation of delay nor had he claimed exclusion of time. The learned Additional District Judge, considered the merits of the application and justifiably held that appellant‑defendant had no plausible defence. No cogent ground was raised to convince this Court to interfere in the impugned judgment and decree in exercise of its appellate jurisdiction. Leave application shows that appellant admitted issuance of cheque in favour of the respondent, though, appellant claimed payment of the entire amount in presence of "Panchayat" on 3‑4‑2001, yet appellant failed to produce any document in support of settlement of either the loan amount or fertilizer account. Examination of contents of appellant's leave petition also show that appellant has raised vague and unsubstantiated grounds by contending that the cheque was issued as security for payment of fertilizer of a relative of the respondent but appellant did not specify or particularize the amount, the transaction or the amount paid in presence of "Panchayat" on 3‑4‑2002. As against this vague, general and un specified plea, the respondent specifically pleaded loan of Rs.24,000 and issuance of cheque thereto by the appellant in favour of the respondent. Admission of issuance and execution of cheque by the appellant adequately substantiates the contents of the plaint and belie the assertions raid by the appellant in the leave application. I am, therefore, of the opinion that the learned Additional District Judge, properly and validly dismissed appellant's petition for leave to appear and defend the suit in absence of any cogent serious and plausible ground of defence. Consequently, the decree as passed and issued by the learned Additional District Judge, Depalpur, does not deserve to be interfered with. The appeal is, thus, dismissed with costs alongwith all C.Ms. H.B.T./K‑182/L Appeal dismissed.