2009 PLP 32 (CLC)

NADEEM AZHAR SIDDIQI, J.

The plaintiff Abrar Ahmed filed this suit under Order XXXVII, C.P.C. against the defendant for recovery of Rs.17,00,

000. Brief facts of the case are that the defendant in 1998 introduced himself to the plaintiff at Karachi as an estate agent/business and stated that he can get a plot allotted to him in a good residential area at Islamabad on official rates. The plaintiff on the basis of assurance extended by the defendant paid a sum of Rs.25,090,000 to the defendant, thereafter on 11-12-1998, the defendant was paid further sum in cash by the plaintiff. The balance of the amount of Rs.20,00,000 was paid by the plaintiff to the defendant through credit advice. However, in January, 1999, it transpired that the defendant was deceiving the plaintiff by giving false hopes and that the defendant never intended to get the plot allotted in the name of the plaintiff. It was also revealed that through the funds provided by the plaintiff the defendant purchased some properties in his name and in the name of his relatives at Multan. When the plaintiff pressurized the defendant for payment of the above amount the defendant issued cheques for Rs.17,00,000 dated 17-9-1999 and forRs.8,80,000 dated 25-9-1999. However, when these cheques were presented the same were dishonoured. The defendant remitted a sum of Rs.7,30,000 through credit advice to the bank account in favour of the wife of the plaintiff and paid a sum of Rs.1,50,000 in cash. The defendant further assured the plaintiff for payment of the remaining amount of Rs.17,00,

000. However, he failed to honour his promise and hence the plaintiff filed, the present suit. On service of summons, Mr. Khadim Nadeem Malik appeared on behalf of the defendant. Vide order, dated 6-9-2002, leave to defend was granted to the defendant subject to furnishing surety in the sum of Rs.17,00,000 before the Nazir of this Court within a period of 30 days. The defendant furnished such surety on 27-9-2002 which was accepted on 28-10-2004. The defendant filed written statement on 1-12-2004 and issues were framed on 28-3-2005 and thereafter the suit was tagged with another Suit No.854 of 2002 and all the orders were passed in the connected suit. On 6-3-2007 notice was ordered to be published in daily newspaper of Multan which was published in Daily "Khabrain" Multan, dated 18-4-2007 and the defendant was declared ex parte on 4-12-2007. The plaintiff has filed affidavit in ex parte proof on 25-2-2008. Learned counsel for the plaintiff filed a statement along with the original cheque and the memo. of return of the cheque by the bank. Learned counsel for the plaintiff submits that the defendant was granted conditional leave to defend but after furnishing the surety and filing of the written statement he fails to appear and contest the matter. He submits that the plaint is on oath and the plaintiff by submitting the original cheque and the memorandum from the bank has proved that the defendant has failed to repay the amount paid to him by the plaintiff. I have heard learned counsel for the plaintiff and perused the record. There appears to be no dispute that the plaintiff has paid an amount of Rs.25,80,000 to the defendant which was repaid by the defendant through cheques but the same were dishonoured. The defendant paid Rs.7,30,000 and Rs.1,50,000 in cash leaving a balance of Rs.17,00,

000. The plaintiff has also produced original cheque and its memorandum to prove his contention. The suit is based on negotiable instrument and the presumption is that the same was against consideration and the defendant has not come forward to rebut the presumption. The plaint as well as the contents of the affidavit-in- evidence have gone unrebutted and unchallenged. Although the defendant has filed written statement but the same cannot be considered as the defendant has not led any evidence. In absence of any evidence the pleas raised by the defendant cannot be considered. The defendant in his written statement has taken the plea of jurisdiction and states that the suit at Karachi is not maintainable as the transaction took place at Multan. In this matter the cheques were dishonoured at Karachi and the cause of action has accrued at Karachi. According to section 20, C.P.C. the suit can be filed where defendant reside or cause of action arises. The objection of jurisdiction has no relevance. In view of the above the suit of the plaintiff is decreed with mark-up @ 6% per annum in accordance with sections 79 and 80 of the Negotiable Instrument Act from the date of the cheque i.e. 17-9-1999 till the date of the filing of the suit i.e. 1-12-2001 and at the same rate from the date of the suit till the date of the decree. The plaintiff is also entitled to mark-up @ 10% per annum from the date of the decree to the date of payment in accordance with section 34, C.P.C. along with cost of the suit. The office to prepare decree in the above terms. M.H./A-106/K Suit decreed.