1999 PLP 3214 (MLD)

(c) Negotiable Instruments Art (XXVI of 1881)

S. 118

Civil Procedure Code (V of 1908), O. XXXVII, R. 3 & S. 96

Suit for recovery of money

Leave to appear and defend the suit refused-- Validity

Suit filed on the basis of a cheque which was dishonoured--Execution of cheque had been admitted

Presumption would be that said cheque was executed for consideration stood therein

No plausible defence having been taken in the counter-affidavit

Leave to defend suit was rightly refused in circumstances. A. Ismailji & Sons Ltd. v. Pakistan PLD 1986 SC 499 rel. Shaukat Hayat for Appellant. Arif Khan for Respondent. Date of hearing: 13th February, 1998. This is an appeal under section 96, C. P. C. directed against the judgment and decree dated 10-9-1987 passed by IIIrd-Additonal District Judge, Karachi-East, in Summary Suit No. 40 of 1985 whereby an application moved by the appellants/defendants under Order 37, Rule

3. C. P. C. for permission to grant leave to appear and defend the suit was refused, hence, the present appeal. Brief facts of the case are that the respondents/plaintiffs filed suit for recovery of Rs. 41,412 against the appellants/defendants under Order 37, C. P. C. on the basis of cheque which was dishonoured when it was presented for encashment. The appellants defendants after service of summons filed an application under. Order 37, Rule 3, C. P. C. for permission to leave to appear and defend the suit and in the counter-affidavit the appellants/defendants stated that suit was not maintainable as the subject-matter of the suit was sub judice in Suit No. 4963 of 1982 pending in the Court of XIV-Civil Judge, Karachi, and further that the appellants/defendants firm never refused to pay the respondents/plaintiffs their legal and lawful dues and were prepared to pay the same as and when the said suit was decided by the said Court and the cheque on the basis of which the summary suit was filed was obtained through coercion. After hearing the counsel for the parties, the application was dismissed and leave to appear and defend the suit was refused. Learned counsel for the appellants has produced photocopy of letter written by the learned counsel for the appellants to the learned counsel for the respondent wherein an offer was made that the appellants/defendants were prepared to withdraw the present appeal and would make payment of principal amount of Rs. 41,412 plus the cost of litigation of Rs. 2,069.50 and as per reply dated 2-12-1996 from the K.P.T., the respondents/plaintiffs, informed that in case the appellants/defendants were agreeable to disposal of other suits pending against them, the respondents could consider the offer for waiving the interest. After the said reply no efforts appear to have been made by the appellants/defendants to finalise the matter. Learned counsel for the respondents has also taken the same stand as stated in the offer letter dated 2-12-1996. Learned counsel for the appellants have raised only plea that the Federal Shariat Court has declared the interest as against the Injunctions of Quran and Sunnah therefore the respondents/defendants would not be entitled to claim the said interest under the Law. So far the said plea Federal Government of Pakistan has A preferred an appeal against the said judgment before the Supreme Court of Pakistan, consequently, the operation of the said decision appealed against shall be deemed to be stayed till the disposal of appeal before the Supreme Court as provided under proviso to sub-Article (2) of Article 203-D of Constitution of Islamic Republic of Pakistan hence, the plea has no merit and substance in Law. Learned counsel for the respondents has also placed reliance upon A. Ismailjee & Sons Limited v. Pakistan (P L D 1986 SC 499 at 518) wherein it has been held that the Appellate Court would not interfere with regard to interest 1 B granted by the Trial Court. No other plea has been raised by the learned counsel for the appellants in support of his case. On the face of record no plausible defence is taken in the counter-affidavit by the appellants/defendants considering that execution of cheque has been admitted, therefore, under section 118 of Negotiable instrument Act, the presumption of consideration stated in cheque would be that the said cheque was executed for consideration and further as per letter above stated, the appellants also admitted and acknowledged the consideration for which cheque was executed. In the circumstances, the Trial Court has rightly refused the appellants the permission to leave to appear and defend the suit. I do not find merit in the appeal which is hereby dismissed. Q.M.H,/M.A.K./D-51/K Appeal dismissed.