2017 PLP 69 (YLRN)

CH. MUSHTAQ AHMAD, J.

This appeal has been directed against judgment and decree dated 15.05.2014 passed by learned Additional District Judge, Rawalpindi, whereby application moved by the appellant for leave to defend the suit filed under Order XXXVII of Civil Procedure Code, 1908 was rejected and the suit was decreed.

2. Contention of learned counsel for appellant is that the appellant had made out a case for grant of leave to defend the suit; that there was disputed question of fact touching merits of the case and the controversy could not be resolved without recording evidence but the learned trial court declined to grant leave to defend the suit without providing fair opportunity of being heard, which has caused injustice to the appellant and that the impugned judgment and decree is not sustainable in the eye of law.

3. The appeal has been opposed by learned counsel for the respondent on the ground that the appeal was not filed within time prescribed by the law, hence, was liable to be dismissed on the question of limitation. Learned counsel further argued that the cheque for payment of Rs.12,00,000/- was issued by the appellant/defendant, which on being presented before the bank authorities was dishonoured; that the learned trial court has rightly declined to grant leave to defend the suit and that the impugned judgment and decree is in accordance with law, hence, not liable to be interfered by this Court.

4. Arguments heard and record perused.

5. The objection raised by learned counsel for respondent regarding limitation has been considered. In the case in hand, impugned judgment and decree was passed on 15.05.2014. The appellant applied for obtaining certified copies on 17.05.2014, which were prepared and delivered to him on 17.06.2014. Time for filing appeal ended in summer vacations. The appeal was filed on 08.09.2014, hence, it could not be said as time barred.

6. On merits, it is to be seen that the respondent/plaintiff had referred in the plaint an agreement between the parties, according to which the payment was to be made by the appellant/defendant. It was version of plaintiff that the payment was not made by defendant as settled by the parties. However, it was version of appellant/defendant that the amount had been paid by him and the cheque was without consideration. The defendant also produced documents along with the application seeking leave to defend the suit in support of his version apart from the affidavit sworn by him. The question as to whether the cheque was without consideration after the amount having been paid, or otherwise, was a factual controversy. The receipts of cheques referred by the appellant/defendant were available on record. By now, it is well settled that nobody can be condemned unheard. Reference may be made to Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, wherein it is provided that "for the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process". Factual controversy raised and supported by documents, can be resolved after recording evidence. Prima facie, the appellant/ defendant had made out a case for grant of leave to defend the suit. Contention of learned counsel for appellant that fair opportunity has not been provided to the appellant to prove his version, is convincing.

7. In view of above, the appeal in hand is accepted and impugned judgment and decree is set aside. Consequently, application filed by the appellant/defendant for leave to defend the suit is allowed, subject to furnishing security equal to the suit amount to the satisfaction of the trial court within seven days after receipt of certified copy of this judgment. Parties are directed to appear before the trial court on 19.01.2015 for further proceedings. As considerable time has already been consumed in litigation by the parties, the trial court is directed to conclude the trial expeditiously, within four months from receipt of certified copy of this judgment, under intimation to the Deputy Registrar (Judicial) of this Court. ZC/K-3/L Appeal allowed.