2021 PLP 1473 (MLD)

ANWAAR HUSSAIN, J.

At the very outset, when confronted as to how respondent No.2, i.e., learned Additional District Judge, Pasrur, Sialkot, could be arrayed as a respondent in a civil revision, learned counsel for the petitioner sought permission to delete respondent No.2 from the array of the respondents, which was accordingly granted. Respondent No.2 has been deleted from the array of the respondents in open Court by the learned counsel for the petitioner who has also affixed his signatures on the memo of the parties.

2. The petitioner (defendant in the suit) has set-forth a challenge to the order dated 28.04.2021 (hereinafter referred to as "the Impugned Order") passed by the learned Additional District Judge, Pasrur, Sialkot, whereby his leave to appear and defend the suit, filed by the respondent (plaintiff in the suit), for recovery of Rs.8,00,000/- against the petitioner under Order XXXVII of the Code of Civil Procedure, 1908 (hereinafter referred to as "the CPC"), on the basis of cheque bearing No.00000014 dated 14.02.2020 (hereinafter referred to as "the cheque"), was refused and the matter has been fixed for corroborative evidence of the respondent. Operative part of the Impugned Order is reproduced hereunder: "4. ...The record of issuance of cheque book containing cheque No.0000014 has been requisitioned from the concerned branch HBL Pasrur and according to the record furnished by the concerned bank, the petitioner/defendant has received the cheque book containing cheque No.0000014 on 22.05.2018. It means that the contention of the defendant/petitioner that he issued open cheque as guarantee along with blank stamp paper on 21.11.2017 is false and baseless as the defendant/petitioner has obtained the cheque book in the month of May, 2018. Since the contention and plea of defendant/petitioner has been denied/rebutted by the documentary proof of the concerned bank. Needless to say and re-call the principle of equity that he who come to court to seek equity must do equity. Furthermore, it has also been established that the defendant/petitioner has come to this court with unclean hands.

5. For what has been discussed above, the application for grant of permission to leave to defend is without any force and also has no merits and same is hereby dismissed.

6. Plaintiff is directed to produce his corroborative evidence on 20.5.2021"

3. Brief facts of the case are that the respondent filed above- referred summary suit with the averments that the petitioner is well known to him. One Muhammad Sagheer Butt who resides abroad is common friend of both the petitioner as well as the respondent and on his assurance, the request made by the petitioner for grant of loan of Rs.8,00,000/- was honoured on 12.10.2019 with the promise that the petitioner will return the loan within two months. When the said loan was not returned as promised, the petitioner in order to delay the pressing demands of the respondent for the return of the loan, tendered the cheque which when presented for encashment was dishonoured due to insufficient funds. Thereafter, on the intervention of some respectables, once again demand for the return of payment was made upon which a stamp paper dated 16.04.2020 was written in favour of the respondent to the effect that the petitioner would pay the borrowed amount by 20.04.2020 which he eschewed and as a consequence thereof, the Respondent was constrained to file the suit. Leave to appear and defend the suit in terms of Rule 3 of Order XXXVII, C.P.C. was filed by the petitioner, inter alia, on the grounds that he is a labourer and borrowed a sum of Rs.35,000/- only from the respondent where against the cheque was given as a guarantee along with blank stamp paper bearing No.B150013 dated 21.11.2017; the petitioner requested the respondent to accept the repayment of the said amount after expiry of six months and return the guarantee cheque as well as the stamp paper dated 21.11.2017, however, the respondent started blackmailing the petitioner by asserting that the loan of Rs. 35,000/- was on interest basis as a result of which huge amount had been accumulated against the petitioner and if the same was not paid, the respondent would fill the blank cheque and get a case registered against the petitioner. Resultantly, the petitioner was constrained to reach an agreement whereby it was settled that a sum of Rs. 15,000/- per month would be paid to the respondent to satisfy the claim of Rs.3,50,000/- instead of original sum borrowed by the petitioner, i.e., Rs. 35,000/. As per contentions stated in the application for leave to appear and defend, the petitioner started making monthly payments of Rs.15,000/- from September, 2019 onward; however, the respondent got registered a criminal case bearing FIR No. 81/20, dated 10.03.2020, under Section 489-F, PPC with Police Station, Pasrur in respect of the cheque that is subject matter of the present lis, after filling an amount of Rs. 8,00,000/- in the cheque, which was blank at the time it was tendered by the petitioner. At this juncture, the petitioner allegedly sold his motorcycle, Honda 125, on 16.04.2020 for Rs.90,000/- to the respondent to clear the amount which was still outstanding out of the claim of Rs.3,50,000/-. It has been further stated that another blank stamp paper, bearing No. A138623 dated 16.04.2020, registered with the stamp vendor under Register No.4381, was handed over to the respondent as the respondent asserted that he intended to transfer the said motorcycle to a third party. The application for leave to appear and defend further spells out that during the investigation of above-referred criminal case, the stamp vendor, who issued stamp paper No. A138623, corroborated the stance of the petitioner. Upon completion of the investigation, the first stamp paper issued on 21.11.2017 was returned to the petitioner. A discharge report was prepared in the said FIR; however, during the course of arguments it has been admitted that the same has not been finalized. Lastly prayed for grant of unconditional leave to appear and defend the suit filed by the respondent against the petitioner under Order XXXVII, CPC.

4. Subsequent to the filing of the leave to appear and defend by the petitioner, the respondent filed an application, admittedly supported by an affidavit, for summoning of the record from M/s Habib Bank Limited Main Branch, Pasrur regarding issuance of the cheque book containing the cheque so that stance of the petitioner as regards the time of tender/issuance of the cheque taken in his application for leave to appear and defend could be ascertained. This application was contested by the petitioner; however, the same was allowed vide order dated 03.03.2021 and Branch Manager of said Bank was directed to produce record of the bank relating to issuance of cheque book containing the cheque. The said Branch Manager appeared on 31.03.2021 and submitted a report. Arguments on application for leave to appear and defend were heard on 28.04.2021 where after the same was dismissed through the Impugned Order.

5. Learned counsel for the petitioner, inter alia, contends that the Impugned Order is illegal, arbitrary and against the settled principles related to Negotiable Instruments Act, 1881 read with Order XXXVII, CPC; no counter-affidavit was submitted to rebut the contentions raised in his leave to appear and defend the suit; the application for summoning the record from the bank was not maintainable before decision on application for leave to appear and defend; the discharge report on the FIR registered against the petitioner substantiates that the respondent has no case in his favour; and there is no document on record showing an agreement/arrangement between the parties for issuance of the cheque in favour of the respondent. The learned counsel for the petitioner placed reliance on case reported as Saleem Akhtar Qureshi v. Habib ur Rehman (2020 CLC 1289). Learned counsel for the petitioner further submits that a suit for specific performance on the basis of another stamp paper was filed by the respondent against the petitioner, which has been dismissed for non-prosecution certified copy whereof has been appended with the instant civil revision along with its reply as well as order dated 04.11.2020 whereby the said suit was dismissed for non-prosecution by the learned trial court, in presence of the learned counsel for the present petitioner, to assert that the respondent is a habitual blackmailer who maneuvered a forge and frivolous agreement to sell regarding the property of the present petitioner and filed the said civil suit for specific performance with permanent injunction in the manner in which he maneuvered the amount in the cheque which was blank at the time it was tendered.

6. Arguments of learned counsel for the petitioner have been heard and available record has been perused.

7. The summary suit filed under Order XXXVII, C.P.C., on the basis of a negotiable instrument stands apart from the normal suit inasmuch as it places a bar on a defendant who cannot appear and defend the suit without seeking permission of the court through application for leave to defend disclosing such factual aspects, which renders the case of the plaintiff porous and susceptible. Therefore, it is imperative upon a defendant in a summary suit to raise such substantial question of facts setting up a plausible defence, which requires investigation and trial; however, such questions of facts must not only be prima facie plausible but also consistent, piercing through the case of the Plaintiff in a manner to make it anything but open and shut case. In the instant case, the main defence of the petitioner as articulated in the application for leave to appear and defend is as under: (Emphasis supplied)

8. After filing of the application for leave to appear and defend the case, the respondent filed an application for production of the bank record and the report submitted by the Branch Manager of Habib Bank Limited, Main Branch Pasrur, revealed that the petitioner had received the cheque book containing the cheque on 22.05.2018, as a result of which the defence of the petitioner in application for leave to appear and defend caved in under its own weight of fallacy and shallowness as the petitioner contended, as quoted above, that he issued the cheque as guarantee along with blank stamp paper on 21.11.2017.

9. The requisite plausibility of defence for grant of leave to appear and defend further vanished into the mist of suspicion when the contents of the leave to appear and defend are juxtaposed with the contents of the instant civil revision. For facility of reference, para 1 of the instant civil revision is reproduced below: "That the facts in brief giving raise (sic) to filing of this civil revision petition are that the petitioner is residing at above mentioned address and working at Pasrur in Pasrur Sugar Mill. In the year, 2017, petitioner has received Rs.35000/- as loan from plaintiff/respondent No.1 and the respondent No.1 received blank stamp paper dated 21.11.2017 bearing No.PB-SKT-799277B29596E9ED as guaranty (sic). In the year 2018, the respondent No.1 return (sic) the blank stamp paper to defendant/petitioner and received open cheque without filing(sic) the amount as guaranty (sic). In the month of August, 2019, the petitioner approach to (sic) respondent No.1 and requested to (sic) him that he received (sic) his amount Rs.35000/- and return the cheque in question but the defendant asked that the amount was given on markup basis and now the total amount is Rs. 350,000/- ." (Emphasis supplied) Perusal of above-referred paragraph from the instant civil revision clearly indicates that the petitioner has taken a somersault as to date of issuance of the cheque. In his application for leave to appear and defend the suit, the date of tendering the cheque has been stated to be 21.11.2017 along with the stamp paper dated 21.11.2017 whereas in para 1 of the instant civil revision, the same has been vaguely stated to be in the year 2018. Similarly, the time period in which stamp paper dated 21.11.2017 was purportedly received back by the petitioner in the application for leave to appear and defend has been stated to be during the course of investigation in FIR No. 81/20, which is during the month of March, 2020 whereas in the instant civil revision, the time frame for return of the same stamp paper is given as year 2018. Moreover, in application for leave to appear and defend it has been stated that the petitioner offered the return of loan after six months from the date of receipt of the loan (which comes to May, 2018) whereas in the civil revision, it has been stated to be in the month of August, 2019. Perusal of contents of the leave to appear and defend further reveals that not only inconsistent pleas have been taken therein but rather a different stance has now been taken by the petitioner in the instant civil revision. It prima facie appears that after passing of the Impugned Order, the petitioner has now taken a contradictory stance as to date of tendering of the cheque as well as regarding other factual assertions, just to cover up reasoning given by the learned trial court in the Impugned Order. The contradictory stance of the petitioner and inconsistent pleas taken for grant of leave to appear and defend the suit is further evident from the fact that in application for leave to appear no ground regarding institution of suit for specific performance along with permanent injunction was taken despite the fact that application for leave to appear and defend was filed on 15.02.2021 much after the dismissal of the said suit for specific performance on 04.11.2020.

10. Reliance placed by learned counsel for the petitioner on Saleem Akhtar Qureshi's case supra is of no help to the petitioner inasmuch as the facts thereof are distinguishable since the defendant in the said case denied the issuance of the negotiable instrument therein as well as legal objection was taken that signatures thereof were forged, which is not the position in the instant case.

11. As regards the plea that application for leave to appear and defend by the petitioner was supported by an affidavit which was not controverted by filing a counter affidavit renders the facts of the petitioner's application to be correct, suffice to state that purpose of filing the counter affidavit is to rebut the contents of an application supported by an affidavit and in the instant case, the respondent filed a separate application for summoning the record from the Bank and report thereof clearly refuted and controverted the stance of the petitioner taken in his leave to appear and defend the suit as to time frame during which the cheque was issued. This application for summoning of record was admittedly supported by an affidavit of the respondent and hence, the same served the purpose of rebutting the stance of the petitioner taken in the leave to appear and defend. Since the main defence of the petitioner as to time period within which the cheque was admittedly issued had been belied and contradictory stance has now been taken thereof, the same renders the ancillary defence of the petitioner, such as discharge report in FIR No.81/20, filing of suit for specific performance by the respondent and its dismissal, irrelevant.

12. During the course of arguments, learned counsel also emphasized that without deciding the application for leave to defend filed by the petitioner, learned trial Court could not entertain any miscellaneous application on behalf of the parties to the lis under Order XXXVII, C.P.C. Similarly, it has been argued that the trial court in a summary suit under Order XXXVII, C.P.C. cannot summon any person for production of documents at the stage prior to decision of application for leave to defend. Although these grounds have not been explicitly raised in the instant civil revision, the same are seminal legal objections taken by the learned counsel for the petitioner for setting aside the Impugned Order.

13. In order to address the legal questions referred to hereinabove, it is pertinent to understand the public policy behind Order XXXVII, C.P.C. The real benefit of suit under the said Order is that unless the defendant is able to demonstrate a substantial defence in the case, the plaintiff is entitled to the judgment forthwith; hence, public policy behind suits under Order XXXVII, C.P.C. is expeditious disposal of the suit involving financial matters. It is now settled law that in suits under Order XXXVII, C.P.C., till such time the leave to appear and defend is allowed, the defendant cannot file any other interlocutory application such as application under Order VII, Rule 10, CPC. Reliance is placed on the dictums laid down in cases titled Khalid Mehmood v. Additional District Judge, West Islamabad and 2 others (2021 MLD 264 Islamabad); Syed Itrat Hussain Rizvi v. Messrs Tameer Micro Finance Bank Limited through Attorney and another (2018 CLD 116 Sindh); National Transmission and Dispatch Company Limited (NTDC) through Dul Authorized Legal Advisor v. Trust Investment Bank Limited (2017 MLD 1304 Lahore); Farooque Ahmed v. Raza Muhammad (PLD 2007 Karachi 182) and Messrs United Distributors Pakistan Limited v. Ahmad Zarie Services and another (1997 MLD 1835 Karachi). Perusal of above referred decisions clearly indicates that unlike a defendant, no such restriction has been imposed upon the plaintiff in a suit under Order XXXVII, C.P.C., to file an application, to bring forth such facts in the notice of the trial court which can enable the trial court to satisfy itself as to genuineness or otherwise plausibility of the defence taken by the defendant in an application for leave to appear and defend the suit before decision on the said application for leave to defend.

14. Insofar as the power of the trial court in the summary suit under Order XXXVII, C.P.C. to summon any person for production of document is concerned, it is pertinent to note that for grant of leave to appear and defend the suit under Order XXXVII, C.P.C., the court is to satisfy itself that the defendant has taken defence to claim on merits raising triable issue indicating that he has fair, bona fide and reasonable defence and if the defendant has no defence or the defence is sham or illusory, the defendant is not entitled to such leave by the court. During this process, it is the satisfaction of the court which is important. In order to satisfy itself to the contents of leave to appear and defend, the court is required not to act in a mechanical manner. Instead the trial court has to apply its judicial mind to the contents of the application for leave to appear and defend. The trial court is not debarred to probe and conduct such an inquiry so as to satisfy itself as to the genuineness and plausibility of the defence of the defendant. For this purpose, as discussed hereinabove, the plaintiff in such suits is not debarred to move an application for summoning a document in custody of any person, which prima facie establishes before the court that the defence taken in the application for leave to appear in the summary suit is sham and illusory, which is precisely the case in the matter in hand. The learned trial court applied its judicial mind, on the facts stated in the application of the petitioner for leave to appear and defend, after its attention was drawn by the respondent through an application for summoning of record from the Bank duly supported by an affidavit, to controvert the stance of the petitioner.

15. For what has been stated above, no ground is made out for interference in the Impugned Order, hence, the instant civil revision is dismissed in limine. MH/M-99/L Revision dismissed.