1986 PLP 872 (MLD)

The respondents sued the petitioners under Order XXXVII, C.P.C., for recovery of Rs. 24,000 ostensibly on the basis of a cheque, which was said to have been dishonoured. The latter contested the suit and raised a number of objections. In the light of the pleadings of the parties, the learned District Judge framed the following issues:‑ "(1) Whether the suit is not within the jurisdiction of this. Court on the ground that defendants reside in Lahore. (2) Whether the suit is not within time? (3) Whether the defendant is not liable to pay the amount of Rs.24,000 to the plaintiff? (4) Relief."

2. The petitioners moved an application under Order XIV, Rule 5, C . P. C . for modification of the existing issues and formulation of some additional issues, which are as under:‑ "Modified Issues" (1) Whether this Court has no jurisdiction to try the suit? O.P. D. (2) Whether the suit is within time? O.P.P. (3) Whether the plaintiffs are entitled to recover the suit amount of Rs. 24,000 from the defendants? O.P.P. "Additional Issues": , (3‑A) Whether the suit has not been properly valued for the purposes of court‑fee and jurisdiction, if so ? what is its effect? ‑O.P.P. (3‑B) Whether the suit is not maintainable in view of preliminary objection No. 2? O . P . D . . (3‑C) Whether. the defendants have executed the mortgage deed and deed of pledge in favour of the defendants, if so, its effect? 0 .P. D. The learned District Judge by his order, dated 25‑4‑1982 dismissed the application. In his opinion issues had already been framed properly and the additional issues related to objections Nos. 2,. 4, 5 and 6 which had been given up. The validity of this order is under challenge in this revision.

3. The name of the respondents' learned counsel is cited in the cause list but no one appears on his behalf. He is, therefore; proceeded against ex parte:

4. I have, heard the learned counsel for the petitioners and examined the available record. Objection to ‑the maintainability of the suit as per para. 6 of the written statement, is rested on the plea that the machinery was delivered to the defendants‑petitioners at Lahore; further the cheque was passed on to the plaintiffs‑respondents at Lahore; and the petitioners are also based at Lahore. Issue No. 1, as it is, covers only one aspect of the objection namely, the petitioners' residence at Lahore. I, feel, that the petitioners are justified in claiming the re‑framing of issue No. l, in the manner as suggested by them. There framed issue would be comprehensive enough to embrace all shades of the petitioners" objection, incorporated in para. 6 of the written statement,

5. As regards issue No.2 it is discernible from para. 5 of the plaint that the cause of action is, shown, to have arisen firstly, on issue and delivery. of cheque, dated 20‑7‑1976, secondly, on 24‑7‑1976; when it was dishonoured; thirdly, on 10‑3‑1978 when the petitioners allegedly made part payment of Rs.1,010 and lastly, two months before the institution of the suit, on their final refusal to clear the liability. The suit was brought on 20‑7‑1979. The learned counsel for the petitioner, objects to the placing of onus of proof on them. His submission is that the period of limitation would commence from the date of issue of the cheque, and the suit not having been brought within three years of that date, prima facie, is barred by time and thus, the burden to prove this issue should have been placed on the respondents.

6. It is evident from the averments made in the plaint, that the cheque was issued to the respondents, for payment of 'the price of the machinery sold to the petitioners. For such a suit, the period of limitation is three years, commencing from the date of delivery of goods. Presumably, the respondents have pleaded extension of time on account of acknowledgment. It is, well‑settled, that he who relies on acknowledgment, must prove it. It being so, the burden of proof with regard to issue No.2 lies on the respondents and was, wrongly placed on the petitioners.

7. On issue No. 3 the petitioners' stand is that it is, for the plaintiffs‑respondents to establish by evidence, the facts entitling them, to recover the said amount and thus, they should prove that the petitioners, are liable to pay it.

8. The pleadings of the parties do not warrant sustenance of this argument. In para. 2 of the plaint, it has been stated that the respondents took the delivery of the machinery and issued the cheque which was dishonoured. The reply incorporated in the corresponding para. of the written statement, inter alia provides:‑ "In this context the cheques were issued and sometimes the payments were made in cash. The defendants do not remember issuance of cheque in dispute or whether it was dishonoured. As a procedure and practice prevailing between the parties, if any cheque was dishonoured the same was totally repaid in cash and then the plaintiffs use to undertake the jobs of manufacture." This reply is somewhat evasive. The purchase of machinery is not denied by the petitioners. Thus, it is for them to prove that the price was paid off to the respondents. Keeping in view, the contents of para. 2 of the written statement, I hold that burden to prove issue No. 3 was rightly placed on the petitioners. The objection is rejected.

9. As regards issues ‑Nos. 3‑‑A and 3‑B, these are anchored on paras. 4 and 2 respectively, of the preliminary objections, in the written statement, which as maintained by the learned District Judge were given up. It is not open to the petitioners to press these objection again and claim these issues now.

10. Only issue No. 3‑C remains to be discussed. Execution of the mortagege‑deed and agreement of pledge has been specifically pleaded in para. 2 of the written statement. It appears, that these averment were overlooked by the learned District Judge. There is,' thus, ample justification for formulation of issue‑ No. 3‑C. 11. ????? As a result of this discussion the position which finally emerges regarding issues is as under:‑ "(1) Whether the Court has no jurisdiction to try the suit? O.P. D. (2) Whether the suit .is within time? O.P.P. Whether the defendants are not liable to pay the amount of Rs.24,000 to the plaintiffs. O.P.D. (4) Whether the plaintiffs executed the mortgage‑deed and the deed of pledge in favour of the defendants; if so with what effect? O.P.D. (additional issue). (5) Relief." foregoing reasons, the impugned order is set aside an the revision petition accepted to the extent stated above. The parties are left to bear their own costs. The suit shall be tried on the issue mentioned in the preceding para. M . Y? .H .?????????????????????????????????????????????????????????????????????????????????????????? Petition accepted.