Suit for recovery of money

Appellant / plaintiff company was aggrieved of dismissal of its suit seeking recovery of money on the basis of five cheques valuing Rs.1,496,480/

Validity

There was not only business relationship acknowledged, but cheques in question could not have been issued merely as security

Cheques in question represented subsisting and admitted liability arising from services actually rendered

Appellant/plaintiff, was entitled to claim entire sum covered by the cheques, or that amount which had been acknowledged through letter dated 06-10-2007 exhibited by appellant / plaintiff which had confined its suit only to Rs.934,491.90, a figure consistent with reconciled balance after adjusting payments made by respondent / defendant

Such fortified bona fides of the claim of appellant/plaintiff had demonstrated that Trial Court failed to correctly appreciate evidence on record

On proper appraisal of record and issues which were core point of determination, suit should have been decided in favour of appellant / plaintiff

Admitted issuance of cheques coupled with the established course of dealings proved the claim of appellant / plaintiff

Respondent / defendant failed to substantiate its defence, hence, Trial Court's conclusion was legally flawed

High Court set aside judgment and decree passed by Trial Court and decreed the suit of appellant / plaintiff

Appeal was allowed accordingly.

Respondent / plaintiff was aggrieved of deduction of disputed bill of credit card, five years after the card was stolen and had been so reported to appellant / bank

Judge in Chambers of High Court decreed the suit in favour of respondent / plaintiff and directed to return disputed amount along with markup

Validity

Appellant / bank was not without some fault and blame and was negligent in its approach and dealing with the entire matter

Appellant / bank accepted to have initially closed investigation into the complaint of respondent / plaintiff in year 2001, then unilaterally re-opened it and withdrew disputed amount from respondent / plaintiff five years post-closing the investigation

This was negligence and mismanagement on the part of appellant / bank

Amount in question was adjudicated by appellant / bank itself without giving respondent / plaintiff any proper opportunity for hearing and rebutting the same

It was the appellant / bank itself who held that a contractual relationship existed between the parties by relying upon various Terms and Conditions between them

Division Bench of High Court declined to interfere in the judgment and decree passed by Judge in Chambers of High Court allowing recovery of funds wrongly auto-debited from the account without any forewarning or permission and without any proper due process being followed

Intra Court Appeal was dismissed accordingly.

Respondent / plaintiff was aggrieved of deduction of disputed bill of credit card, five years after the card was stolen and had been so reported to appellant / bank

Judge in Chambers of High Court decreed the suit in favour of respondent / plaintiff and directed to return disputed amount along with markup

Validity

Appellant / bank was not without some fault and blame and was negligent in its approach and dealing with the entire matter

Appellant / bank accepted to have initially closed investigation into the complaint of respondent / plaintiff in year 2001, then unilaterally re-opened it and withdrew disputed amount from respondent / plaintiff five years post-closing the investigation

This was negligence and mismanagement on the part of appellant / bank

Amount in question was adjudicated by appellant / bank itself without giving respondent / plaintiff any proper opportunity for hearing and rebutting the same

It was the appellant / bank itself who held that a contractual relationship existed between the parties by relying upon various Terms and Conditions between them

Division Bench of High Court declined to interfere in the judgment and decree passed by Judge in Chambers of High Court allowing recovery of funds wrongly auto-debited from the account without any forewarning or permission and without any proper due process being followed

Intra Court Appeal was dismissed accordingly.

Appellant/defendant was aggrieved of dismissal of his application for leave to defend the suit on the ground that proper notice was not issued by Court

Plea raised by respondent / plaintiff was that copy of plaint had been provided to appellant / defendant during proceedings under criminal law

Validity

If defendant in summary suit is given a copy of plaint when he appears in criminal case, it is not a good service

Summonses were to be in the prescribed Form and with the summons a copy of plaint was to be attached to show nature of the suit enabling appellant / defendant to file application for leave to defend the suit within the prescribed period of ten days

Although summons was served upon appellant / defendant, yet till the time he appeared in Court and filed application for leave to defend the suit officially and on record the copy of plaint was not handed over to him

High Court set aside the order passed by Trial Court dismissing application for grant of leave to appellant / defendant and he was granted condition leave to defend the suit

Appeal was allowed accordingly.

Suit filed by respondent/plaintiff was decreed by both the Courts below in his favour and against the petitioner/defendant

Validity

Promissory note, under section 4 of Negotiable Instruments Act, 1881 is required to contain four essential ingredients: (i) an unconditional undertaking to pay; (ii) the sum should be the sum of money and certain; (iii) the payment should be to or to the order of a person who is certain, or to the bearer of the instrument; and (iv) the maker should sign it

If an instrument fulfills such four conditions, it is called a promissory note

Requirement of attestation of a document provided under Article 17 (2)(a) of Qanun-e-Shahadat, 1984 does not apply to promissory note

Petitioner/defendant took a vague stance and evasively denied allegations so made by the respondent/plaintiff as to his claim against petitioner/defendant

Such denial without any substantive proof could not be considered and approved

Trial Court and High Court minutely appreciated and evaluated pleadings of parties and had assessed evidence on the principle of preponderance

Both the Court below reached to a just conclusion that petitioner/defendant failed to successfully overturn the stand taken by respondent/plaintiff against him

Supreme Court declined to interfere in judgments and decrees passed by two Courts below in favor of respondent/plaintiff

Petition for leave to appeal was dismissed and leave was refused.

Suit filed by respondent/plaintiff was decreed by both the Courts below in his favour and against the petitioner/defendant

Validity

Promissory note, under section 4 of Negotiable Instruments Act, 1881 is required to contain four essential ingredients: (i) an unconditional undertaking to pay; (ii) the sum should be the sum of money and certain; (iii) the payment should be to or to the order of a person who is certain, or to the bearer of the instrument; and (iv) the maker should sign it

If an instrument fulfills such four conditions, it is called a promissory note

Requirement of attestation of a document provided under Article 17(2)(a) of Qanun-e-Shahadat, 1984 does not apply to promissory note

Petitioner/defendant took a vague stance and evasively denied allegations so made by the respondent/plaintiff as to his claim against petitioner/defendant

Such denial without any substantive proof could not be considered and approved

Trial Court and High Court minutely appreciated and evaluated pleadings of parties and had assessed evidence on the principle of preponderance

Both the Court below reached to a just conclusion that petitioner/defendant failed to successfully overturn the stand taken by respondent/plaintiff against him

Supreme Court declined to interfere in judgments and decrees passed by two Courts below in favor of respondent/plaintiff

Petition for leave to appeal was dismissed and leave was refused.

Witnesses of petitioner / defendant stated that he had made payments but none of the witnesses stated date, time and year of payment, therefore, burden was not discharged on basis of such type of vague statement

Revisional jurisdiction of High Court was limited and merits of case could not be reopened

High Court in exercise of revisional jurisdiction was to confine itself to law point only or misreading or non-reading of evidence

Revision was dismissed, in circumstances.

Petitioner/Government sought condonation of delay and contended that second suit filed by respondent/plaintiff was barred by limitation

Validity

Period of 90 days for filing of revision has been prescribed under Art. 162-A in First Schedule to Limitation Act, 1908

Bar prescribed by S. 29(2) of Limitation Act, 1908 does not apply to civil revision

Lower Appellate Court passed judgment and decree on 20-02-2020 and civil revision petition was governed by newly inserted Art. 162-A in Limitation Act, 1908, at the time of its filing

In province of Balochistan, provision of S. 5 of Limitation Act, 1908, was applicable to civil revision petitions filed under S. 115, C.P.C. for condonation of delay in filing petitions

Petitioners/Government obtained certified copy of judgment and decree on 11-11-2020, but the petition was filed on 30-11-2020

Delay of nineteen days was not explained

High Court declined to condone delay caused in filing of revision petition

Limitation of ninety days under Art. 162-A of First Schedule to Limitation Act, 1908 is relevant only when civil revision petition is filed by party to proceedings

Such impediment is non-existent when Court itself exercises jurisdiction under S. 115(1), C.P.C.

First suit which had been withdrawn was not to be considered and time spent on such suit was not to be deducted for the purpose of limitation even when permission to institute a fresh suit had been granted

Respondent/defendant was allowed to institute a fresh suit subject to all just and legal exceptions

Time spent in prosecution of first suit could not be excluded under O. XXIII, R. 2, C.P.C. for the purpose of limitation

High Court in exercise of suo motu revisional jurisdiction set aside judgment and decrees passed in favour of respondent/plaintiff by Trial Court and Lower Appellate Court

Revision was allowed, in circumstances.

During proceedings, respondent / defendant sought stay of proceedings and the matter was forwarded to arbitrator but on his failure to pay requisite fee to the arbitrator matter was delayed

Appellant / plaintiff sought the suit restored but Trial Court after recording of evidence dismissed the suit on ground that it could not have been restored

Validity

Award which had been made after issuance of a supersession order passed by Trial Court was liable to be set-aside

After order of restoring the suit was passed by Trial Court, award could not have been made by an arbitrator even if the matter had been referred back and decided in arbitration

Division Bench of High Court set aside the order passed by Judge in who Chambers of High Court who insisted on the matter only being decided through arbitration proceedings

Division Bench of High Court set aside judgment and decree passed against appellant / plaintiff and the matter was remanded to Trial Court for decision afresh

Intra Court Appeal was allowed, in circumstances.

Plaint of the plaintiff (a compulsory retired bank employee) against the defendant / Bank was rejected for not being instituted within time-period i.e. three years from receipt of dues settlement letter between the parties

Contention of the appellant /plaintiff was that he addressed a letter to the respondent (defendant / Bank) after one and half months of receipt of the dues settlement letter, to which no response was ever received, thus, the cause of action accrued to him on the date of the said letter

Validity

If the starting point of the limitation period were to commence from the date of issuance of the appellant's own letter, as suggested, it would lead to an untenable and illogical outcome

By such reasoning the accrual of limitation would be entirely at the discretion and mercy of the claimant (appellant in the present case)

This would create an anomalous situation where the limitation period may never begin to run, or could be arbitrarily delayed potentially by years or even decades in an extreme scenario simply by the claimant choosing not to issue such a letter

Such an interpretation would not only defeat the very object and purpose of limitation law, which is to bring finality to litigation and prevent stale claims, but would also undermine the certainty and predictability essential to legal proceedings opening the door to potential abuse

Plaint of the appellant was rightly rejected

Appeal was dismissed, in circumstances.

Plaintiff/applicant sought permission to produce secondary evidence with regard to documents in question which were claimed to be lost

Validity

Plaintiff/applicant could not claim benefit of Art. 76(c) of Qanun-e-Shahadat, 1984

Loss of original documents was not due to uncontrollable or unforeseeable event but rather resulted from plaintiff's/applicant's own internal mismanagement

Allowing secondary evidence under such conditions would undermine the principle that parties must exercise proper care in preserving documentary evidence, particularly when such documents form basis of a legal claim

Request of plaintiff/applicant to rely on secondary evidence under Art. 76(c) of Qanun-e-Shahadat, 1984 was legally unsustainable and could not be entertained

Protection of Art. 76(c) of Qanun-e-Shahadat, 1984 is not granted mechanically or routinely; it is contingent upon the party demonstrating that loss of documents occurred despite exercising reasonable care and was not due to its own negligence

Plaintiff's casual assertion of loss, without any accompanying evidence of efforts to prevent or mitigate such loss, indicated lack of due diligence

Such plea was only raised when Evidence Commissioner refused to exhibit photocopies of documents concerned

High Court declined producing of secondary evidence of documents in question as plaintiff/applicant was treating invocation of Art. 76(c) of Qanun-e-Shahadat 1984, as an afterthought rather than a legitimate legal entitlement

Application was dismissed, in circumstances.

Proceedings in suit filed by appellant/plaintiff company were stayed by Trial Court due to arbitration clause in contract between the parties

Application under O. VII, R. 11, C.P.C. filed by respondents/defendants-Authorities for the plaint in the suit to be rejected on the ground that Court at place "I" did not have the territorial jurisdiction to adjudicate upon the suit, was dismissed

Plea raised by respondents/defendants-Authorities was that works under contracts were executed at place "M" and that contracts were also executed at place "M"

Validity

One of the respondent/defendant authority did not have its offices at place "I"

Dispute as to whether the contracts were executed between respondent/defendant authority and JV at place "I" or place "M" was also to be determined by Trial Court after recording of evidence

Whether or not respondent/defendant authority's excuse for payment of amount into JV account instead of payment through Letter of Credit in accordance with the provisions of the contracts was plausible or sustainable was also to be determined in an adjudicatory process in Trial Court in the suit instituted by appellant/plaintiff company

Trial Court did not commit any jurisdictional irregularity by dismissing application under O. VII, R. 11, C.P.C.

High Court set aside order of Trial Court staying proceedings, resultantly application under S. 34 of Arbitration Act, 1940 was dismissed

Appeal was allowed accordingly.

Respondent/plaintiff filed suit for recovery of money along with costs for delay caused in completion of contract due to fault on the part of appellant/authorities

Judgment and decree passed by Trial Court was maintained by High Court

Validity

Nature of delays meant that respondent/plaintiff was eligible for multiple extensions of time, and appellants/authorities granted such extensions

Inclement weather was beyond the control of appellants/authorities and respondent/plaintiff was allowed extension of time

When extensions of time were granted and the project was completed then question was why respondent/plaintiff initiated recovery proceedings

Such recovery proceedings were nothing but an effort to avoid paying the refund that appellants/authorities were rightfully owed by respondent/plaintiff

"But-for" Test, was to ask if delays by respondent/plaintiff were independent of the delays by appellants/ authorities

If delays of respondent/plaintiff were only happening because appellants/authorities had caused delays first, then the delays of appellants/authorities were the root cause

If respondent/defendant had also been causing delays regardless of the actions of appellants/ authorities, then the delays of respondent/plaintiff were independent

Applying the "But-For" Testmeant that the delays of respondent/ plaintiff were independent and he was not entitled to recover amount through the suit

Supreme Court set aside conclusions arrived at by High Court as well as Trial Court which were patently improbable and perverse

Supreme Court dismissed the suit filed by respondent/ plaintiff and set aside the judgments and decrees passed by two Courts below

Appeal was allowed.

Appellant / defendant was aggrieved of judgment and decree passed by Trial Court for recovery of amount mentioned in cheque which was dishonored on presentation

Plea raised by appellant / defendant was that he issued the cheque merely as surety

Validity

Appellant / defendant undertook to pay Rs.1,500,000/- without requirement of any reference to principal debtor

There was nothing on record suggesting that anything contrary had been settled between the parties

Witnesses were cross-examined in length but nothing adverse or sufficient to rebut the presumption arising under S. 118 of Negotiable Instruments Act, 1881, was noticed

Appellant / defendant admitted signing second agreement and did not deny issuance, presentation and dishonoring of the cheque

High Court declined to interfere in the judgment and decree and imposed cost upon appellant / defendant as Trial Court had reached the correct conclusion

Appeal was dismissed in circumstances.

Appellants/ defendants were aggrieved of dismissal of their application filed under S.34 of Arbitration Act, 1940 for staying proceedings and directing the parties to pursue their remedies in terms of arbitration clause

Plea raised by respondent / plaintiff was that certain notices issued to appellants/ defendants were not responded and in Trial Court they had asked to file written statement

Validity

Request for adjournment for submission of written statement was recorded by Trial Court on the day when the Court was also confirming that the entire attachments to the suit were not available with appellants/defendants and the same were handed over to them on the given day

Trial Court had wrongly construed the intention of appellants / defendants to discard their right to invoke arbitration clause available in partnership deed

Any initial presumption arising against appellants/defendants stood dislodged

Referred communication, prior to institution of suit had no bearing, as S. 34 of Arbitration Act, 1940 provided that an application for stay could be instituted at any time after commencement of legal proceedings

Suit was relied upon for ascertaining the intention to waive off right of arbitration related to period prior to partnership deed which then required the disputes to be resolved through arbitration

Earlier suit of respondent / plaintiff pertained to year, 2014 which was disposed of on 16-02-2015 on the basis of partnership deed formally executed on 07-01-2015

Subsequent suit could not be termed as a continuation of the earlier suit, for the purposes of ascertaining situation in hand

This fact was mistakenly observed by the Trial Court

Preamble of partnership deed gave it a superseding effect besides the fact that specific clause of partnership deed provided that the same constituted the entire understanding between the parties with respect to the subject matter of the partnership deed

High Court in exercise of appellate jurisdiction, set aside the order passed by Trial Court and proceedings in the suit were stayed

Appeal was allowed, in circumstances.

Petitioner / defendant company was aggrieved of judgment and decree passed by Trial Court in favour of respondent / plaintiff after closing its right to produce evidence

Validity

Trial Court used discretion in favour of petitioner / defendant many a time by granting it adjournments for production of complete evidence but it failed to catch up with the leniency shown by Trial Court

Even authorized representative of petitioner / defendant did not enter into witness box so as to record his statement

Pursuing of the case in such manner showed disobedience and indifferent demeanour towards orders of Courts

Such an indolent person could not seek favour of law as the law favours the vigilant and not the indolent

High Court in exercise of revisional jurisdiction declined to interfere in judgments and decrees passed by two Courts below as the evidence was thoroughly examined by Trial Court as well as Lower Appellate Court

Revision was dismissed, in circumstances.

Appellant / defendant was aggrieved of judgment and decree passed by Trial Court for recovery of amount mentioned in cheque which was dishonored on presentation

Plea raised by appellant / defendant was that he issued the cheque merely as surety

Validity

Appellant / defendant undertook to pay Rs.1,500,000/- without requirement of any reference to principal debtor

There was nothing on record suggesting that anything contrary had been settled between the parties

Witnesses were cross-examined in length but nothing adverse or sufficient to rebut the presumption arising under S.118 of Negotiable Instruments Act, 1881, was noticed

Appellant / defendant admitted signing second agreement and did not deny issuance, presentation and dishonoring of the cheque

High Court declined to interfere in the judgment and decree and imposed cost upon appellant / defendant as Trial Court had reached the correct conclusion

Appeal was dismissed, in circumstances.

Even if date on which cheque was presented and returned unpaid due to lack of funds in bank account of respondent / defendant was taken into consideration amount had become recoverable both as per date of cheque and also as per date of refusal of payment, and suit could therefore be instituted within three years till 05-07-2012 in terms of Art. 64-A of Limitation Act, 1908, which had not been filed on the face of it and was barred by time

Appellant / plaintiff did not claim any acknowledgment in writing on the part of respondent / defendant, nor did he append any or tender in evidence any such acknowledgement

Law did not recognize any oral acknowledgement of liability so as to claim benefit of S. 19 of Limitation Act, 1908

There was no written acknowledgement and plea of alleged extension of limitation was totally unwarranted and was correctly rejected

Suit was filed after 10 years from the date when amount was due and was barred by time

High Court declined to interfere in judgment and decree passed by Trial Court as there was no misreading or non-reading of evidence nor any error of law or jurisdiction could be pointed out

Appeal was dismissed, in circumstances.

Appellant/defendant sought setting aside of ex-parte judgment and decree passed by Trial Court against him through an application, which was dismissed

Validity

Case of the petitioner was that he was not properly served in the suit

Record reflected that the suit under O. XXXVII, C.P.C. was instituted on 25.05.2022 on which the summons was ordered to be issued to the defendant/petitioner for 14.06.2022

On the said date it was observed that service upon the defendant was effected, however, summons was again ordered to be issued along with affixation at conspicuous place/address of the defendant

Copies of both the summons were available on record and though it had been stated in the report of the process server that the defendant had received the same yet his signatures were not obtained in acknowledgement of their receipt

Rule 16 of O. V, C.P.C., required the Serving Officer/Process Server to obtain signature of the defendant while delivering him a copy of the summons personally

Thus, the requirement of law had not been properly adhered to in the instant case inasmuch as signatures or thumb impressions of the petitioner had not been apparently obtained in acknowledgement of receipt of the summons nor was it stated in the reports of Process Server that signatures of the petitioner were required upon delivery of the summons in acknowledgement of service endorsed on the original summons

Necessary pre-conditions for invoking R. 17 of O. V, C.P.C., i.e. refusal of the petitioner or his agent to sign the acknowledgement or failure of the Process Server to find the petitioner after using all due and reasonable diligence were clearly missing, therefore, procedure adopted by the Process Server was clearly not under the said rule

Even otherwise a copy of the summons was not specified to have been affixed on the door or some conspicuous part of premises of the petitioner to satisfy requirement of said rule

Additionally, no further inquiry in the matter was carried out under R. 19 of O. V, C.P.C., facilitating examination of the Serving Officer

Service of the defendant/petitioner shown to be affected in the proceedings of the suit did not seem to be proper and in accordance with the law on the subject, in circumstances

Revision petition was accordingly allowed.

Where author of trust makes a clear written declaration of trust, no actual transfer of movable trust property or trust money is necessary, and where author of trust is himself the trustee such declaration need not be registered

There was no declaration of trust by defendant Company in favor of plaintiff

Three certainties to form a trust based on judgments and provisions of law were also missing

Three missing requirements, include, (1) Defendant company intended to constitute a trust for unpaid dividends; (2) Defendant company intended to bind definite property (profit on unclaimed shares) by the trust; and (3) defendant company intended to benefit a definite person (plaintiff) in a definite way

Defendant Company was not acting as a trustee

Plaintiff voluntarily and willingly remitted funds to purchase shares that defendant company never registered, and used dividends from disputed shares for almost 37.5 years

Defendant company was bound to compensate plaintiff for unjust enrichment it had enjoyed for 37.5 years based on the orders of High Court passed in appellate jurisdiction read in the light of relevant articles of the Articles of Association of 1953, 1986 and 2007

Plaintiff was entitled to profit/interest on unpaid dividends on the basis of equity and/or unjust enrichment

Plaintiff established his claim against defendant company who was liable to compensate plaintiff in the sum of Rs.154,110,753 (net of taxes) as the equalizer profit on the dividend income retained and utilized by defendant company based on principles of equity and in the alternative, unjust enrichment

Defendant company retained plaintiff's funds arising out of the shares eventually registered in the name of plaintiff by way of Court's Order under relevant articles of the Articles of Association of 1953, 1986 and 2007 which provided an exception under the Articles of Association of defendant company that members could claim no interest

Such equalizer profit of Rs.154,110,753 was calculated based on simple interest of 5% p.a. of aggregate of unpaid dividend income of Rs.82,192,402 (net of taxes) spread over 37.5 years from 01-01-1970 to 30-06-2007 and such equalizer assumed that defendant company made annual profit of Rs.4,109,620 per year on unpaid dividends

Suit was decreed accordingly.

Applicant / defendant was declared ex-parte by Trial Court who was barred from filing application for leave to appear and defend the suit

Validity

First time copies of the plaint of summary suit were handed over to applicant / defendant and time was given to him to file application under O. XXXVII, R. 3, C.P.C. for leave to appear and defend summary suit

In absence of any proof of summons having been served before that date, the summons was deemed to have been served on the applicant / defendant on the date when copy of plaint of summary suit was provided to him giving him 10 days from that date to file his application for Leave to Appear and Defend summary suit

Trial Court rightly held that it did not have jurisdiction to enhance time prescribed in Art. 159 of First Sched. to Limitation Act, 1908

High Court declined to interfere in order passed by Trial Court although there were some irregularities which were not material in nature

Revision dismissed was, in circumstances.

Trial Court on the basis of an order passed by Criminal Court in the criminal proceedings against respondents / defendants for same set of facts dismissed the suit

Appeal filed by petitioner / plaintiff was also dismissed by Lower Appellate Court

Validity

Institution of suit by petitioner / plaintiff meant that he made a false statement before Criminal Court regarding forgiveness of respondents/defendants in the name of Almighty Allah

In civil suit, statement recorded by petitioner / plaintiff before Criminal Court was binding upon him under Art.114 of Qanun-e-Shahadat, 1984

Suit of petitioner / plaintiff was barred by estoppel

Presumption of genuineness was attached to statement of petitioner / plaintiff recorded by him before Criminal Court that he had forgiven respondents/ defendants without any monetary consideration

Petitioner failed to rebut such mandatory presumption of law and fact

Suit instituted by petitioner was rightly dismissed by two Courts below, as order passed by Criminal Court was relevant in a civil case

Any judgment, order or decree which is a fact in issue or is relevant under some other provision of Qanun-e-Shahadat, 1984, was relevant in any other civil or criminal case under Art. 57 of Qanun-e-Shahadat, 1984

High court declined to interfere in concurrent findings of facts by two courts below as the same did not suffer from any illegality

Revision was dismissed, in circumstances.

Words "while granting leave to defend" employed in S. 11(1) of Financial Institutions (Recovery of Finances) Ordinance, 2001, did not bar or imply that such decree could not be passed before leave to defend was granted, especially when admitted amount was payable by defendant/Bank to plaintiff/customer regardless of the fact whether leave to defend was granted or refused

High Court directed defendant/Bank to return admitted amounts to plaintiffs / customers and interim decree was passed

Application was allowed accordingly.

Plea raised by appellant/Bank was that letter relied upon by respondent/plaintiff was not an offer rather it was a pre-contract and invitation to investment

Validity

When parties to a contract agreed to substitute a new contract in place of previous one, then performance of original contract was dispensed with

Where modified contract did not possess any independent contractual force then modified contract was read into the original contract except in so far the terms were inconsistence with the modifications

After compromise agreement, rules governing Profit and Loss Sharing Term Deposit were not applicable to the profit of 15% per annum on Deposit Certificates

No default of reciprocal obligations under the compromise agreement

Respondent/plaintiff was entitled for 15% profit regardless of terms given in Account Opening Form and certificates

Earlier suit filed by respondent/plaintiff was withdrawn without permission to file fresh suit, in that earlier suit, respondent/ plaintiff challenged various letters issued by appellant/Bank about revised rates, whereas subsequent suit was regarding recovery of profit amount, which was absolutely a different cause of action

Suit was not hit by O.XXIII, R.1(3), C.P.C.

Issues for which onus to prove was on appellant/Bank and no evidence was produced by appellant/Bank to support such issues, the same were lawfully decided by Trial Court against appellant/Bank

High Court declined to interfere in judgment and decree passed by Trial Court

Appeal was dismissed accordingly.

Plea raised by appellant/Bank was that letter relied upon by respondent/plaintiff was not an offer rather it was a pre-contract and invitation to investment

Validity

When parties to a contract agreed to substitute a new contract in place of previous one, then performance of original contract was dispensed with

Where modified contract did not possess any independent contractual force then modified contract was read into the original contract except in so far the terms were inconsistence with the modifications

After compromise agreement, rules governing Profit and Loss Sharing Term Deposit were not applicable to the profit of 15% per annum on Deposit Certificates

No default of reciprocal obligations under the compromise agreement

Respondent/plaintiff was entitled for 15% profit regardless of terms given in Account Opening Form and certificates

Earlier suit filed by respondent/plaintiff was withdrawn without permission to file fresh suit, in that earlier suit, respondent/ plaintiff challenged various letters issued by appellant/Bank about revised rates, whereas subsequent suit was regarding recovery of profit amount, which was absolutely a different cause of action

Suit was not hit by O.XXIII, R.1(3), C.P.C.

Issues for which onus to prove was on appellant/Bank and no evidence was produced by appellant/Bank to support such issues, the same were lawfully decided by Trial Court against appellant/Bank

High Court declined to interfere in judgment and decree passed by Trial Court

Appeal was dismissed accordingly.

Prescribed period for filing the application for leave to appear and defend such suit is ten days from the date of service of summons or the date of knowledge.

Parties were ex-husband and wife and suit was filed by respondent/plaintiff for recovery of money on the basis of dishonored Bank cheques

Trial Court relied upon written statement of appellant/defendant (husband) filed in another suit filed by respondent/plaintiff (wife) against her previous father-in-law

Trial Court declined to grant leave to defend and suit was decreed in favour of respondent/plaintiff

Validity

Presumption under S. 118 of Negotiable Instruments Act, 1881 was attached to negotiable instrument and burden was upon the person denying the same to prove to the contrary

Such presumption was rebuttable by evidence

Parties were spouse at the relevant time, so there could be probability of stance taken by husband

Without providing opportunity to appellant/ defendant to prove his stance through leading evidence his stance could not be discarded straight away on the basis of presumption that the version of appellant/defendant would be wrong or erroneous

Respondent/plaintiff denied claim of appellant/defendant through her counter affidavit but it was difficult at such stage to decide such dispute in absence of evidence of the parties

Trial Court denied leave to defend application of appellant/defendant on the premise of relying on contents of written statement of appellant/defendant allegedly filed by him in another suit, instituted by respondent/plaintiff against her former father-in-law

Trial Court while dismissing application to defend the suit filed by appellant/defendant, did not consider legal status of the pleadings of another suit

When no evidence is recorded, then contents of written statement could not be treated as proved and believable, as true and correct

Contents of pleadings of any other suit could not be considered in another matter for deciding fate of it, which suits have no nexus with each other

Prima facie there was substantive dispute between parties, which required deeper inquiry

High Court remanded the case with direction to Trial Court to decide leave to defend application of appellant/defendant afresh

Appeal was allowed accordingly.

Defence set up by appellant/defendant was neither fake nor without any material to support or just bald allegations without any substance

At worst, even if appellant's/defendant's defence was treated as vague or unsatisfactory or there was a doubt as to its genuineness or it appeared to be very weak or a sham one, then leave to defend should have been granted conditionally putting him on terms to either furnish security or deposit the amount claimed by respondent / plaintiff in summary suit

Factual premise on which Judge in Chambers of High Court predicated his judgment was fallacious on account of misreading and non-reading of pleadings and/or documentary record

Plausible defence was made out by appellant / defendant and triable issues had been raised which required determination by Trial Court

Facts narrated and documents produced in summary suit by appellant / defendant showed that there was a substantive dispute which merited deeper enquiry and required grant of leave so that the relevant material could come on the record through process of evidence

Granting of leave to defend application did not mean that respondent / plaintiff was being non-suited

Non-granting of leave to defend application was fatal for appellant / defendant who would be left with no recourse to establish its case

Division Bench of High Court set aside judgment and decree passed by Judge in Chambers of High Court, granted conditional leave to defend the suit and remanded the matter for trial in accordance with law

Appeal was allowed accordingly.

Plaintiff sought recovery of liability of outstanding price of fuel/bunker services provided by it to defendant company for ships

When the suit was filed defendants had already sold the ships which were in the process of breaking

Validity

Admiralty jurisdiction of High Court under S. 3(2)(l) of Admiralty Jurisdiction of High Courts Ordinance, 1980, could be invoked to determine any cause / claim in respect of necessaries supplied to a ship including fuel / bunker service

According to S. 4(4) of Admiralty Jurisdiction of High Courts Ordinance, 1980, if a claim under S. 3(2)(l) of Admiralty Jurisdiction of High Courts Ordinance, 1980, arising in connection with a ship, claim could give rise to a maritime lien on the ship only when Admiralty jurisdiction of High Court could be invoked by an action in rem against the ship, if at the time when the action was brought, that ship was beneficially owned in respect of majority shares therein by that person who was liable to the claim in an action in personam

Suit filed by plaintiff was not maintainable under Admiralty jurisdiction of High Court

Suit was dismissed, in circumstances.

Trial Court and Lower Appellate Court concurrently decided the matter in favour of respondent / plaintiff and against applicant / Provincial Government

Provincial authorities themselves took unambiguous responsibilities to make payment to contractor

Once taken such responsibility, the executant legally could not take any exception

After 18th Amendment in the Constitution, Provincial Authorities were legally believed to be acting independently

Relief was not tenable in law unless specifically detailed in document and agreed by the other side

No such reference was available in the contract that Federal Government had stopped payments because of 18th Amendment in the Constitution

Execution of agreement in the shape of work at the site and payment to respondent was prime duty of Provincial Government who issued work order

All payments were made to respondent / plaintiff through applicant / Provincial Government and not by Federal Government, though claim of applicant / Provincial Government was that such amount was received through Federal Government as per agreement

When there was 18th Amendment in the Constitution, it was duty of applicant / Provincial Government to pay amount with regard to a project which fell within its territory

Claim of Province against Federation needed to be dealt independently by respective sides, which legally could not be excused to deny what the Province itself owned by entering into a clear and unambiguous document

High Court directed applicant/Provincial Government to sort out the issue and ensure payment to be made to respondent / plaintiff company

Revision was dismissed, in circumstances.

Trial Court struck off right of evidence of appellant / defendant and suit was decreed in faovur of respondent / plaintiff

Validity

Failure to mention date, time and place of alleged oral agreement in plaint was not just creating further doubt in version of respondent / plaintiff but mentioning date and time in plaint was also necessary to obtain relief on the basis of alleged oral agreement

Trial Court struck off defence of appellant / defendant by invoking provisions of O. XVII, R.3, C.P.C. and decreed the suit in favour of respondent / plaintiff without taking into account written statement filed by appellant / defendant

Trial Court was duty bound to take into consideration all pro and contra evidence and then proceeded to decide matter on its merits rather than on technicalities

Even if right of appellant / defendant to produce evidence stood struck off under O.XVII, R.3 C.P.C., even then Trial Court was under legal obligation to give its findings on each issue separately

High Court set aside judgment and decree passed by Trial Court as the same was based on misinterpretation of law on the subject, result of misreading and non-reading of evidence available on record and suffered from material irregularity and illegality

Appeal was allowed, in circumstances.

Plaintiff sought recovery of liability of outstanding price of fuel/bunker services provided by it to defendant company for ships

When the suit was filed defendants had already sold the ships which were in the process of breaking

Validity

Admiralty jurisdiction of High Court under S. 3(2)(l) of Admiralty Jurisdiction of High Courts Ordinance, 1980, could be invoked to determine any cause / claim in respect of necessaries supplied to a ship including fuel / bunker service

According to S. 4(4) of Admiralty Jurisdiction of High Courts Ordinance, 1980, if a claim under S. 3(2)(l) of Admiralty Jurisdiction of High Courts Ordinance, 1980, arising in connection with a ship, claim could give rise to a maritime lien on the ship only when Admiralty jurisdiction of High Court could be invoked by an action in rem against the ship, if at the time when the action was brought, that ship was beneficially owned in respect of majority shares therein by that person who was liable to the claim in an action in personam

Suit filed by plaintiff was not maintainable under Admiralty jurisdiction of High Court

Suit was dismissed, in circumstances.

Petitioner/defendant was aggrieved of permission granted under O. XIII, R. 2, C.P.C. by Trial Court to respondent/plaintiff to place on record certain document

Validity

Object of O. XIII, R. 2, C.P.C. was to exclude forged document and expedite trial and not to exclude genuine document

If there was no doubt as regards to authenticity then for substantial justice such document was not to be refused to be received in evidence merely on the ground of delay

Trial Court was empowered under O. XIII, R. 2, C.P.C. to allow production of document at later stage, if the document was essential for just decision of the case and also the document was free from any suspicion of being forged and fabricated

High Court declined to interfere in order passed by Trial Court

Revision was dismissed, in circumstances.

Real benefit of suit under O.XXXVII, C.P.C. is that unless defendant is able to demonstrate a substantial defence in the case, plaintiff is entitled to judgment forthwith

Public policy behind suits under O.XXXVII, C.P.C. is expeditious disposal of suit involving financial matters

In suit under O.XXXVII, C.P.C. till such time leave to appear and defend is allowed, the defendant cannot file any other interlocutory application.

Defendant was aggrieved of dismissal of his application by Trial Court declining to reject the suit being barred by time

Validity

Cause of action was required to be ascertained through recording of evidence

Explicit acknowledgment existed on behalf of plaintiff that many times and finally on 15-9-2015 defendant was directed to make payments which was not done

Date of occurrence of cause of action agitated by plaintiff was 15-9-2015 and suit was filed on 20-7-2018 and was apparently within time as per assertion of plaintiff, which was to be proved through evidence

Question of limitation was mixed question of law

High Court in exercise of revisional jurisdiction declined to interfere in the order passed by Trial Court as the same was well reasoned touching the very roots of plea raised by defendant

Revision was dismissed, in circumstances.

Suit for recovery of money on the basis of dishonored Bank cheque was filed by plaintiff/appellant who sought attachment of vehicle of defendant/respondent before judgment

Trial Court, on application filed by defendant/respondent recalled order of attachment of vehicle

Validity

No application on behalf of defendant / respondent, who had not obtained leave to appear and defend the suit was maintainable, even if such application was an interlocutory or with respect to ancillary matter

Defendant/respondent was not granted leave to appear and defend the suit by Trial Court and application for release of attached property was not maintainable

High Court set aside order passed by Trial Court as the same was illegal and without jurisdiction

Constitutional petition was allowed, in circumstances.

Plaintiff entered into an agreement with defendants for supplying certain construction machineries on agreed monthly rent

Plaintiff sought recovery of alleged outstanding rent as well as certain damages

Single Judge of High Court dismissed suit filed by plaintiff

Validity

Plaintiff admitted returning of equipment permanently in his legal notice

Plaintiff had repeatedly relied upon legal notice which was served upon defendants on his behalf and was produced during his evidence

Legal notice was silent about the figure claimed by plaintiff in his plaint

Plaintiff did not prefer any claim regarding amount in question and also it was not clarified as to how the amount was calculated

Plaintiff failed to establish amount as due in respect of the contract for supply of plants and machineries to defendants

Judgment and decree passed by Single Judge of High Court did not suffer from any infirmity, illegality or irregularity as plaintiff failed to discharge his onus

No misreading or non-reading of available evidence in judgment and decree passed by Single Judge of High Court was noticed

High Court Appeal was dismissed in circumstances.

Plaintiff Bank filed suit for recovery of money from defendant, a Bank employee in lieu of Staff House Advance extended to defendant

Defendant filed application before High Court for deposit of whole amount in court claimed by plaintiff Bank before judgment

Validity

Defendant through House Advance as well as his other amount, purchased property in question in his own name and mortgaged with Bank as security against Staff House Advance which was to be recovered from defendant through his future salaries

Bank did not seek any relief in respect of mortgaged property therefore, in event if Bank succeeded in case, a money decree would be passed and not a mortgaged decree

Defendant was ready to secure entire claim of Bank along with markup, and there was no prejudice caused to Bank if defendant was allowed to deposit amount of entire claim of Bank

Application was allowed accordingly.

Court under O.XXXVII, R.3, C.P.C. has the discretion to grant leave to defend conditionally or unconditionally which depends upon the facts and circumstances of each case

Purpose of the said Rule is to empower the court to strike a balance between the two situations, i.e. where triable issues are raised/disclosed by the defendant, then unconditional leave to defend is to be granted or where defence is taken by the defendant with the sole object to gain time, then court may insist on some condition.

Purpose of special and separate procedure provided under O.XXXVII, C.P.C. is to ensure speedy and timely disposal of financial matters, which can be brought before a court on the basis of 'bill of exchange', 'promissory note', 'hundi' and 'cheque', etc.

Leave to appear and defend the suit has been made a condition precedent with an obvious object to curb the delaying tactics of a delinquent defendant, who has no plausible defence or a triable issue, and also to minimize the agonies of plaintiff.

Trial Court as well as Lower Appellate Court in exercise of revisional jurisdiction concurrently refused to reject the plaint

Validity

Trial Court after having reflected controversy in issue would decide suit after recording evidence on issues already framed

High Court declined to interfere in the judgments passed by two courts below as plea agitated by defendant required evidence to be adduced by both parties

Plaintiff failed to point out any illegality or irregularity or jurisdictional defect in judgments passed by two courts below

Constitutional petition was dismissed, in circumstances.

Defendant impugned rejection of application for leave to defend, on the ground that he had in fact repaid the amount (facility) for the first year and had not sought renewal of the same

Validity

Defendant had executed documents in respect of renewal of facility and in its application for leave to defend, had not mentioned the amount of repayment of facility and dates thereof and provided no proof for such repayments

Such failure on part of defendant would attract penal consequences for rejection his application for leave to defend

No illegality existed in impugned order

Appeal was dismissed, in circumstances.

Set-off must be where a suit was one for recovery of money and amount in regard to such set off must be an ascertained sum of money, which must be legally recoverable by defendant(s)

Such amount must be recoverable by defendant from plaintiff(s) and must not exceed pecuniary limits of jurisdiction of the court in which the suit was brought

Both parties must fill, in the defendants claim to set off, the same character they fill in the plaintiff's suit

Set off claim must be pleaded in the manner prescribed in law and within period of limitation prescribed in law.

Defendant instead of filing application to defend the suit, sought stay of proceedings and referring the matter for arbitration

Trial Court dismissed the application filed by defendant as the same was filed before seeking leave to appear and defend the suit

Validity

Provisions of O. XXXVII, C.P.C. provided for special procedure in case of classes of suit specified therein

If dispute was covered under arbitration clause incorporated in agreement then provisions of Arbitration Act, 1940, were attracted and in such eventuality defendant was entitled to file application for staying proceedings under S. 34 of Arbitration Act, 1940, provided conditions mentioned therein were satisfied

Essential conditions required to be met were existence of arbitration agreement and filing of application before taking any other step in proceedings

Conduct of defendant was pivotal and crucial test for determining whether an act was step in proceedings was display of unequivocal intention not to proceed with the suit and to refer dispute for arbitration

Trial Court was to satisfy that conduct of party seeking stay of proceedings did not reflect an intent to waive right to resolve dispute through arbitration

Prior to seeking leave to appear and defend the suit filed under O. XXXVII, C.P.C. application under S.34 of Arbitration Act, 1940, could be entertained

Seeking and arguing application for leave to defend under O. XXXVII, R. 3, C.P.C. tantamount to taking a step in proceedings and thus negating legislative intent postulated under S. 34 of Arbitration Act, 1940

In order to demonstrate an unequivocal intention not to waive the right to refer the matter for arbitration, filing of application under S. 34 of Arbitration Act, 1940, at the first instance was crucial

Such application was to be filed independently and the same would also tantamount to seeking leave of Court to appear without defending the suit

High Court set aside order in question and remanded the matter to Trial Court for deciding application under S. 34 of Arbitration Act, 1940, afresh

Appeal was allowed accordingly.

Respondent filed suit for recovery of money on the ground that cheque given by appellant was dishonoured because of non-availability of funds in his Bank account

Trial Court decreed the suit of respondent

Validity

Appellant had admitted in his examination in chief as well as in cross examination recorded before Trial Court that he had handed-over the cheque to the respondent

Respondent had proved his claim by adducing oral and documentary evidence

Appellant had failed to rebut the claim of the respondent as he had not adduced single oral or documentary evidence in the Trial Court

Appeal was hopelessly barred by time and appellant had not filed application for condonation of delay

Decree was passed by Trial Court on 27-11-2015 and certified copy of judgment was delivered to the appellant on 13-5-2016 and appeal was filed on 18-4-2017

Judgment and decree passed by Trial Court did not call for interference

Appeal being devoid of merit and force was accordingly dismissed.

Plea of department was that they had advertised in newspaper inviting tenders for improvement and widening of the disputed road

Plaintiff had also participated in the tender process, but could not qualify and after failure in getting the contract of disputed road filed suit with mala fide intention

Validity

Tehsildar in his letter addressed to Assistant Commissioner submitted his report regarding work executed by Department wherein he confirmed that the disputed road was repaired by the plaintiff and was completed

Executive Engineer through his report framed estimate of restoration of existing road and submitted the same for accord of technical sanction by the competent Authority

Niab Tehsildar appeared before Trial Court and testified that several projects were started on emergency basis and he was supervising those projects; that contract of restoration of disputed road was awarded to plaintiff and that he had visited the site and inspected the disputed road and plaintiff was found there along with his labour, who were working on the disputed road

Two private witnesses had also testified in the Trial Court that they had worked at the disputed road with plaintiff

Another witness, who appeared in rebuttal, testified that he was employee of Public Works Department; that due to land sliding, disputed road was blocked; that plaintiff had repaired/restored the same and that Sub Divisional Officer and Overseer had measured the disputed road in his presence as he was supervisor of repair/restoration work of disputed road

Trial Court had rightly decreed the suit in favour of plaintiff

Appeal, being devoid of merit, was dismissed, in circumstances.

Plea raised by defendant was that process in shape of notice issued by Trial Court was not proper service as directed by C.P.C.

Validity

Upon institution of suit, Court was duty bound to issue summons to defendant calling upon him to answer, on the date specified in the summons, the claim made by plaintiff in his suit

Notice could be issued to defendant at any subsequent stage of suit and for the purpose specified therein or in respect of applications filed by plaintiff or other defendants in a pending suit but not upon institution of suit to answer claim of plaintiff

Summons in prescribed Form No.4 of Appendix-B to O.XXXVII, R.2(1),C.P.C. was not issued at all

No publication in newspaper was made in respect of the suit

Entire proceedings and ex-parte order passed against defendant were illegal and liable to be set aside

High Court set aside order in question

Revision was allowed in circumstances.

Karachi Port Trust had admitted refund therefore, findings of Judge in Chambers of High Court were not against facts, law and documents on record

Similar question had already been decided in a Constitutional petition

High Court declined to interfere in the judgment and decree passed by Judge in Chambers of High Court as there was no perversity, illegality and incorrectness in same

Appeal was dismissed in circumstances.

Appellants were successors-in-interest of deceased defendant against whom Banking Court declined to set aside ex parte decree

Validity

Banking Court did not notice repercussions of decree against a dead person which was under execution against his legal heirs and failed to appreciate that suit could be filed only against a living person and suit against a dead person as well as any order, judgment or decree passed against a dead person in such suit was a nullity

High Court set aside judgment and decree passed by Banking Court against predecessor-in-interest of appellants

Appeal was allowed in circumstances.

Subsequently plaintiff filed application for restoration of suit and sought appointment of Arbitrator under Ss. 8 & 20 of Arbitration Act, 1940

Validity

Once parties were referred to Arbitrator, the purpose / object of Arbitration Act, 1940, was effectively achieved and parties were prevented to obtain a decree from Court contrary to their own agreement that their disputes were to be adjudicated by a private party as provided in arbitration agreement

Order on application under S. 34 of Arbitration Act, 1940, and / or on application under S. 20 of the Act, was one and the same

Purpose of both the provisions was to seek enforcement of an 'arbitration clause/agreement' against the party guilty of avoiding / refusing arbitration for resolution of their dispute

High Court declined exercise of discretion under S. 25 of Arbitration Act, 1940

Plaintiff had repeatedly approached the High Court by suppressing arbitration agreement and attempted to obtain a decree from a civil Court despite the fact that the suit was barred under S. 32 of Arbitration Act, 1940

Suit was dismissed in circumstances.