2003 PLP 272 (CLD)

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11. That on 23rd May, 2001, at about 10 a.m., the respondents Nos.3 and 4 (husband of plaintiff), alongwith some other persons who claimed C.I.A., Police Officials (plain dress), came at the residence of the petitioner and arrested him illegally, used abusive language, Respondents and particularly respondents Nos.3 and 4, with the help of other armed person got executed some documents and cheque from the petitioner, under great pressure, threat and thereafter released the petitioner, giving him further threats of arrest in near future in false case." In the counter‑affidavit, filed by the plaintiff, the plaintiff produced photocopy of the passport of her husband and produced the original of the same during the course of the arguments. From the perusal of the passport it appears that the plaintiffs husband left Pakistan on 21‑5‑2001 and re‑entered on 12‑7‑2001. During all this period (i.e. 21‑5‑2001 to 12‑7‑2001) the plaintiffs husband remained in U.A.E. On the basis of this document the defendant's entire story comes to ground and cannot be believed that the promissory note, and cheques were got executed by the husband of the plaintiff under duress on 23‑5‑2001. As regards the second contention of the learned counsel for the defendant that these promissory notes and cheques were issued without consideration, burden lies on the defendant to prove the same. Under section 118 of the Negotiable Instruments Act, 1881, there is an initial presumption that a negotiable instrument is made, drawn, receipted on endorsement for consideration. Although this presumption is a rebuttable presumption, yet the onus is on the person denying consideration to allege and prove the same. The defendant failed to discharge the said burden. The learned Advocate for the defendant relied upon Haji Abdul Whaid v. Hoechst Pakistan Ltd. and others (1993 CLC 1291). The brief facts of the case, on the basis of which, judgment has been given, are that respondent Messrs Hoechst Pakistan Ltd. (filed suit for recovery of Rs.5,55,032,75 under Order XXXVII, rule 2, C.P.C.) have common dealers for sale of the goods by agreement with right to assign their rights and obligations to each other. The defendant's case was that during the course of their business defendant placed order for supply of goods with them at Karachi and upon receipt of orders plaintiff supplied goods to defendant on credit on various dates according to the plaintiff a sum of Rs.4,78,476.51 remained unpaid and defendant issued cheques which were dishonoured. The learned Single Judge expressed the view that defendant has raised many legal and technical Joints which required trial and granted leave conditionally. The defendant filed appeal against said order, which was accepted and unconditional leave was granted, on the principle that if defendant raised many legal and technical Points which require trial, then leave should be granted unconditionally. In my humble opinion the principle laid down in the above‑cited case cannot be applied to the present case. In she instant case the defendant stated that promissory note and cheque were got executed by the husband of plaintiff on 23‑5‑2001 under duress, whereas on the said date the plaintiffs husband was not in Pakistan. In the case of Messrs National Security Insurance Co. Ltd. and others v. Messrs Hoechst Pakistan Ltd. (1992 SCMR 718), the Hon'ble Supreme Court has held: "Under Order XXXVII, rule 3 of the Code, before the Court can grant leave to a defendant to appear and defend a suit, it must prima facie find from his application and affidavits that there is reasonable material which makes it incumbent on the plaintiff to prove consideration or there is a plausible defence or some specific question of fact or law which required to be tried or investigated." (Underlined are mine). In the case of Allied Bank of Pakistan v. Messrs Faiz Ahmad Manzar Ahmad and others (PLD 1985 Lahore 188), it has been held: "From the above provisions it emerges that the grant of leave to defend a suit filed under Order XXXVII, C.P.C. is not a matter of course or a matter of right. In order to be eligible for this benefit the defendant will have 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 that granting of permission to defend the suit or refusal thereof shall be dependent on the attendant circumstances of each case and as such no hard and fast rule could be laid for the purpose. However, some broad principles which could be a guideline for the Courts while considering an application for leave to defend can be and have, in fact, been laid down in judicial precedents and lie scattered therein. In this judgment I propose to succinctly bring out those guidelines in the light of the aforementioned provisions and the judgment of the Supreme Court on the subject." The Hon'ble Court further held following broad principle for determining the controversy regarding grant or refusal of leave to defend suit under Order XYXVIII, C. P. C. (a) Leave shall be refused if no defence worth the name is made out on facts or in the application for leave to defend, (b) leave shall also be refused if the defence disclosed on affidavits is sham or colourable or illusory/ imaginary and may not give rise to triable issues. Needless to add that it both the above events, a decree shall follow in the suit, (c) if a defence is disclosed on affidavits which may warrant putting the plaintiff to prove consideration, leave shall be granted, (d) where the defendant discloses upon his affidavits a case, which may constitute a plausible defence or shows that there is some substantial question of fact or law, which needs to be tried or investigated into, then also the defendant shall be entitled to leave to defend. The permission to appear and defend a suit in any of the cases falling under sub‑paras. (c) and (d), above may be unconditional or subject to such conditions/ terms as may be imposed by the Court; (e) if the defence set up is found to be vague or unsatisfactory or in genuine on cursory perusal, leave may not be refused altogether, and if it be felt that there may be prima facie triable issues arising out of the defence disclosed, leave may be granted but on terms as may be considered necessary by the Court." The defendant failed to make out any case for grant of leave to defend. The grounds taken are illusory and I cannot grant leave to defend on such illusory allegation, as such the application is dismissed and plaintiffs suit is decreed in the sum of Rs.11,50,000 with no order as to costs. S.A.K./66/K Application dismissed.