2014 PLP 1448 (CLC)

AMIN-UD-DIN KHAN, J.

Through this appeal appellant has challenged the judgment and decree dated 7-1-2002 whereby his suit filed under Order XXXVII of the C.P.C. was dismissed.

2. Brief facts of the case are that on the basis of a cheque for Rs.70,000, allegedly given by the respondent-defendant on 8-11-1998 to the appellant-plaintiff, who filed a suit for recovery under Order XXXVII of the C.P.C. on 21-6-2001. Leave was refused to the defendant-respondent. The evidence was recorded. Vide judgment and decree dated 7-1-2002 learned District Judge, Dera Ghazi Khan dismissed the suit on the ground that the cheque was never presented for payment in the bank and when the cheque has not been presented, no cause of action is available to the plaintiff, therefore, dismissed the suit.

3. Respondent was proceeded against ex parte vide order dated 9-10-2012. Even after that date no one appeared on behalf of the respondent. Even today no one is present on his behalf, therefore, ex parte arguments have been heard.

4. Learned counsel for the appellant argues that when leave to defend was refused, the learned trial Court was not competent to ask the plaintiff to produce the evidence and further that the learned trial court was bound under the law to straightaway decree the suit as prayed for.

5. I have heard learned counsel for the appellant and have gone through the record.

6. Admittedly, the cheque was never presented in the bank for payment. When the cheque was never presented for payment, in the light of section 72 read with section 84 of Negotiable Instruments Act (XXVI) of 1881, therefore, there is no refusal by the drawer or the bank for payment of cheque, therefore, no cause of action accrued to the plaintiff for filing of suit under Order XXXVII of the C.P.C.

7. According to the ordinary practice of the bank a cheque is to be presented within six months from its date of issue. In this case cheque is dated 8-11-1998 and suit for recovery under Order XXXVII of C.P.C. was filed on 21-6-2001 and even between this period the cheque was never presented before the bank for payment. The definition of cheque has been given in section 6 of the Negotiable Instruments Act, 1881. For ready reference section 6 is reproduced:

"A "cheque " is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand." It clearly reveals that cheque is only payable on demand and cause of action arose only when such demand is not honoured. When there is no demand and there is no question of dishonour of demand, therefore, on this view of the matter also the suit was not maintainable, hence, the view taken by the learned trial Court is absolutely in accordance with law and no decree under Order XXXVII of C.P.C. can be passed on the basis of a cheque which was never presented to the bank for payment.

8. For what has been discussed above, no case for interference is made out. This appeal stands dismissed. KMZ/A-135/L Appeal dismissed.