2016 PLP 671 (MLD)

FAISAL ARAB, J.

The respondent filed a suit against the appellants for recovery under Order XXXVII C.P.C. on account of dishonour of cheque amounting to Rs.25,00,000/-, which he claimed to have been issued by the appellants for settlement of the claim in a joint business. Appellant No.2 claimed that he is not signatory to the cheque and it was appellant No.1 who is son of appellant No.2 that has signed the cheque. While leave to defend application was pending, the case on 12.11.2005 was transferred to Additional District Judge, Karachi (South). The matter was pending there for over four years when on 18.11.2009 the leave to defend application was dismissed for non-prosecution. Thereafter on 09.01.2010 the judgment and decree was passed for Rs.25,00,000/- i.e. the value of the dishonoured cheque. Against this decision, the present appeal has been filed.

2. The counsel for the appellants contended that after transfer of the case on 12.11.2005 no Court Motion Notice was issued and ex parte judgment was passed without hearing the counsel for the appellant. He next contended that in the suit, apart from the cheque amount, damages were also claimed and through a statement, the claim for damages was withdrawn but no notice of such withdrawal was issued to the appellants. He next contended that the cheque was signed by appellant No.1, who was not a partner in the firm of which cheque was issued, therefore, no decree could have been passed against defendant No.2. It is also contended that the issuance of cheque was conditional as there was an agreement (Iqrarnama) executed on 20.8.2004 between the parties that unless dispute is resolved, no legal right on the basis of the cheque could be enforced.

3. The counsel for the respondent, in rebuttal, contended that both the appellants had filed Suit No. 1129/2004 against the respondent seeking, amongst other reliefs, cancellation of the cheque issued to him which is the subject matter of the present proceedings and suit was unilaterally withdrawn by the appellants on 05.12.2012. He next contended that an FIR was also lodged by the appellants alleging that the cheque was obtained under coercion but the respondent was discharged under the provisions of section 249-A, Cr.P.C.

4. In response to the contentions of the counsel for the appellants that there was no notice after the case was transferred, respondent's counsel relied upon the case of Irshad Hussain v. Azizullah Khan 1987 SCMR 150, wherein it has been held that it is for the parties to pursue the matter before the Court to which the case has been transferred.

5. From the above, it is evident that the cheque of Rs.25,00,000/- was admittedly issued to settle respondent's claim against appellant No.2 though appellant No.2 is not the signatory to the cheque. The cheque was issued of the partnership firm of which appellant No.2 is a partner and appellant No.2 along with his son appellant No.1 filed Suit No. 1129/ 2004 owning the issuance of the cheque in question to the respondent. An agreement "Iqrarnama" dated 20.08.2004 has also been filed by the appellants, according to which the parties were to settle the dispute before encashment of the cheque in question but admittedly after filing the suit and registration of the criminal proceedings against the respondent the chance of any out of Court settlement vanished. As the Iqrarnama itself acknowledges that there was a claim of the respondent of Rs.25,00,000/- for which the cheque in question was issued, the trial Court rightly decreed the suit under the provisions of Order XXXVII, C.P.C. As to the plea that no notice was issued by the transferee Court suffice to state that after transfer of the case, the matter was pending for more than four long years and the appellants did not pursue the matter. It was incumbent upon the appellants themselves; to pursue the matter before the transferee Court as held in 1987 SCMR

150. This Court, therefore finds no justification to interfere with the findings arrived at in the impugned judgment. This First Appeal is, therefore, dismissed along with the listed applications. ZC/M-20/Sindh Appeal dismissed.