2005 PLP 1924 (YLR)

Khalid Mehmood, respondent had filed a suit for recovery of Rs.1,00,000, on the basis of a cheque issued by Muhammad Kausar, petitioner, in the Court of learned Additional District Judge, Sadiqabad on 19-2-2003. An application for grant of leave to appear and defend the suit was filed by the defendant-petitioner, which was allowed and the petitioner had filed written statement in the aforesaid Court. An application under Order VII, rule 11 of the C.P.C. was moved by the petitioner for the dismissal of the instant suit on the plea that the petitioner had filed an earlier suit against the plaintiff-respondent, in which Khalid Mehmood had undertaken that he would not recover the disputed amount of cheque, without rendition of accounts and would have recourse to the lawful proceedings for the recovery of the amount. It is the case of the petitioner that the learned counsel, appearing on behalf of Khalid Mehmood plaintiff-respondent, having made the statement in an earlier suit, the present suit is liable to be dismissed because he had not rendered the account. This application was dismissed by the learned Additional District, Judge, Sadiqabad on 2-6-2004. Hence, this civil revision.

2. Learned counsel for the petitioner has argued that the plaintiff-respondent was bound by the statement of his learned counsel and without rendition of accounts, he could not file the suit. And there was no cause of action in the instant suit available to the respondent as the petitioner-defendant had already paid all the amount of the disputed cheque. So, the suit was liable to be dismissed.

3. I have heard the learned counsel for the petitioner and have perused the record.

4. After hearing the learned counsel, I cannot endorse the view and the arguments propounded by the learned counsel for the petitioner. The petitioner-defendant has noted and entered all these objections in his written statement. In para. No.2 of his written statement, he has stated that in lieu of payment of the cheque amount, he had delivered Toyota Corolla Car and Rs.5,000 net cash to the plaintiff-respondent and that Rs.10,000 were only payable by him to the plaintiff for which he was ready to pay it at any time. From this version, it has coin out on the surface that amount of cheque was admittedly to be paid by the petitioner, which according to him, was paid through delivery of Toyota Corolla Car and Rs.5,000 in the shape of net cash. So, cause of action in the suit is apparent. The petitioner has now to discharge his burden to prove the payment. As the petitioner has himself admitted in his written statement that Rs.10,000, are still to be paid by him, therefore, after this assertion in the case, the question and prayer of rendition of accounts disappears. As the petitioner himself is aware of the amount, he had paid and what was the remaining with him to be paid by him.

5. Therefore, the application being an effort to hamper the progress of the suit cannot be accepted. The civil revision is, accordingly, dismissed with no order as costs. H.B.T./M-1048/L Revision dismissed.