2002 PLP 439 (CLC)

Tahir Faraz Abbasi for Appellant. Syed Farzand Ali Shah for Respondent. Date of hearing: 22nd October, 2001. This is an appeal under section 96 read with Order 41, rule 1, C.P.C. directed against the judgment and decree, dated 7‑11‑2000 passed by learned District Judge Abbottabad in Suit No.33/1 of 2000 whereby an application moved by the appellant for grant of permission to appear and defend the suit was declined and a decree for recovery of Rs.1,50,000 with interest at the rate of 18% till the recovery of the amount, was passed.

2. Facts relevant for the purpose of this appeal are that Muhammad Ismail Sabri plaintiff instituted suit against Javed Qayyum Khan defendant on 1‑9‑2000 seeking recovery of Rs.1,50,000 with interest at the rate of 18% under Order 37, C.P.C. on the basis of a cheque which was dishonoured when it was presented for encashment. According to the plaintiff the defendant secured a sum of Rs.1,50,000 from the plaintiff as loan and issued him' Cheque No.17579447, National Bank of Pakistan, Main Branch, Abbottabad and that when the cheque was presented to the Bank for ,encashment it was returned for want of amount in the account of the defendant. The defendant appeared in Court and resisted the claim of the plaintiff on all grounds legal as well as factual. He admitted having issued the cheque in question to the defendant but maintained that the same was issued as security and it related to a transaction in respect of sale of certain property. The application did not find favour with the learned trial Judge and the same was refused and a decree as prayed for was granted, as noted above.

3. Mr. Tahir Faraz Abbasi, Advocate appeared on behalf of defendant‑appellant whereas plaintiff‑respondent was represented by Syed. Farzand Hussain Shah, Advocate. I have heard the arguments of learned counsel for the parties in the light of the material on the record and the case‑law cited at the bar.

4. Learned counsel for the appellant challenged the correctness of the impugned judgment and decree on a variety of grounds and contended that the appellant and respondent belong to the same area and the aunt of the appellant sold certain landed property to one Dr. Muhammad Ashraf, in which the appellant, his brother and others were co‑sharers that some amount was offered to the plaintiff and his brother in order to enable him to pre‑empt the sale in favour of Dr. Muhammad Ashraf and that the cheque in question was issued in this connection and no money was obtained as loan. The learned counsel, urged that keeping in view the facts and circumstances of the case and the pleas raised in the application for grant of leave, the learned trial Judge had no good reason to decline the application of the appellant and pass a decree as prayed for. He relied on Messrs Skyline Travels (Pvt.) Ltd. v. Messrs Fly World Travels and another 1997 CLC 76b, Sardar Abdur Rehman v. Fida Hussain 1996 CLC 1571, Habib Bank Ltd. v. Asghar Ali and others 1998 CLC 353 and Abdul Karim v. United Bank Ltd. and 2 others 1984 SCMR 568.

5. Conversely learned counsel for the respondent supported the impugned judgment and prayed for its sustenance maintaining that no substantial question of law and fact needing trial having been disclosed, the learned trial Judge was quite justified to refuse to accept the application of the appellant and decree the suit as prayed for. He also contended that the appellant has filed written statement instead of application for grant of leave and 'on this ground alone the application merits dismissal. To augment the contentions he relied on Messrs Karachi Bandid Stores Ltd. v. Trustees of the Port of Karachi 1999 MLD 3214, Rana Muhammad Ahmad Noon v. Muhammad Javed Khan 1999 SCMR 1845 and Raja Saeed Ahmad Khan v. Sabir Hussain 2000 CLC 199.

6. Grant of leave to defend a suit filed under Order XXXVII, C.P.C. is not a matter of course or right. In order to be legible for this benefit, the defendant is liable to show such facts which may warrant the proving of the consideration by the plaintiff or disclose a plausible defence which may give rise to triable issues. This necessarily implies I that granting of permission to defend the suit or refusal thereof shall be dependent on the attending circumstances of each case and as such no hard and fast rule can be laid for the purpose. Leave shall be refused if no defence worth the name is made out on facts or in law in the application for leave to defend the suit leave shall also be refused if the defence disclosed on affidavits is sham or colourable on illusory/imaginary and may not give rise to triable issues. In the present case the issuance of cheque has not been denied but the factum of loan has been repudiated and it is maintained that the cheque was issued with regard to a transaction concerning some property and it had no nexus with any loan amount. According to the learned counsel, certain disputes arose between the parties regarding rate of the land which resulted in filing of instant suit.

7. Having heard the arguments of the learned counsel for the, parties and going through the case‑law cited at the bar, I find myself in agreement with the learned counsel for the appellant that in order to resolve the controversy between the parties, the application of the appellant should have been allowed as there was substantial question of law and fact involved in the case. As the availment of loan was specifically denied and the cheque was claimed to have been issued as security in respect of purchase of land, an opportunity should have been afforded in the case to resolve the controversy through inviting evidence.

8. Resultantly, I accept the appeal, set side the impugned judgment and decree and remand the case to the learned trial Judge with direction to decide the same afresh after affording an opportunity to the parties to adduce evidence in support of their respective contention's. The parties shall appear there on 30‑10‑2001. The learned trial Judge shall decide the case within a period of 4 months. No order as to costs. Q. M. H. /M. A. K./410/P Case remanded.