Summary suit

2021 CLD 1261 SUPREME-COURT Judicial Precedent

Ss. 6, 22 & 118Civil Procedure Code (V of 1908), O. XXXVIISummary suitCheque, issuance of

Whether cheque was issued by respondent for consideration or merely as an acknowledgment/receipt for investment made by him

Held, that it was a well-established principle that a cheque was intended to be for immediate payment

In ordinary circumstances cheques were exchanged between the parties for the purpose of immediate payment

Cheque was not even entitled to days of grace, as in the case of promissory notes and bills of exchange

Presumption that every negotiable instrument was made/drawn for consideration was however rebuttable

Burden to rebut said presumption laid upon the party arguing that the negotiable instrument had not been made/drawn for consideration

Such presumption was not rebutted by a bare denial of the passing of the consideration

To disprove the presumption the defendant (person who had issued the cheque/negotiable instrument) had to bring on record such facts and circumstances, upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist

In the present case the respondent (who had issued the cheque) provided a bare denial as his defence, and produced no independent evidence to support his plea that cheque was issued by him merely as a receipt

Furthermore no protest was lodged by the respondent when the appellant presented the cheque for encashment to a bank, which returned the cheque with the remark 'refer to drawer'

Respondent re-validated the cheque but it was again declined by the bank with the same remark

If respondent's plea that cheque was issued merely as a receipt was accepted, then question was as to what was the purpose behind revalidating the cheque

Only reasonable explanation for this was that cheque was issued and revalidated by the respondent so that appellant could recover his amount owed to him by the respondent

Appeal was allowed and summary suit filed by appellant for recovery of his amount was decreed.

2021 SCMR 1890 SUPREME-COURT Judicial Precedent

Ss. 6, 22 & 118Civil Procedure Code (V of 1908), O. XXXVIISummary suitCheque, issuance of

Whether cheque was issued by respondent for consideration or merely as an acknowledgment/receipt for investment made by him

Held, that it was a well-established principle that a cheque was intended to be for immediate payment

In ordinary circumstances cheques were exchanged between the parties for the purpose of immediate payment

Cheque was not even entitled to days of grace, as in the case of promissory notes and bills of exchange

Presumption that every negotiable instrument was made/drawn for consideration was however rebuttable

Burden to rebut said presumption laid upon the party arguing that the negotiable instrument had not been made/drawn for consideration

Such presumption was not rebutted by a bare denial of the passing of the consideration

To disprove the presumption the defendant (person who had issued the cheque/negotiable instrument) had to bring on record such facts and circumstances, upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist

In the present case the respondent (who had issued the cheque) provided a bare denial as his defence, and produced no independent evidence to support his plea that cheque was issued by him merely as a receipt

Furthermore no protest was lodged by the respondent when the appellant presented the cheque for encashment to a bank, which returned the cheque with the remark 'refer to drawer'

Respondent re-validated the cheque but it was again declined by the bank with the same remark

If respondent's plea that cheque was issued merely as a receipt was accepted, then question was as to what was the purpose behind revalidating the cheque

Only reasonable explanation for this was that cheque was issued and revalidated by the respondent so that appellant could recover his amount owed to him by the respondent

Appeal was allowed and summary suit filed by appellant for recovery of his amount was decreed.

2020 SCMR 1621 SUPREME-COURT Judicial Precedent

O. XXXVIINegotiable Instruments Act (XXVI of 1881), S. 118Summary suitAdmittedly the subject cheque belonged to the bank account and cheque book of the defendantDefendant claimed that the cheque in question was lost and he had reported the matter to the police

When the plaintiff presented the cheque to the bank it was dishonoured on the ground of "insufficient funds" and "payment stopped by the drawer", which fact was supported by the statement of the bank manager

Neither it was the statement of the bank manager nor mentioned on memorandum of refusal of cheque that the cheque did not contain signatures of the defendant

Presumptions mentioned in S. 118 of the Negotiable Instruments Act, 1881 were attached with a negotiable instrument unless proved to the contrary

Said presumptions were to be rebutted by the defendant

When the ground for dishonour of a cheque was "insufficiency of funds" and "stopped payment", there could be no presumption that cheque was not having signatures of the defendant

Defendant had the choice to produce a Handwriting Expert when he disputed his signatures upon the cheque, but he opted not to produce any such expert

Suit filed by plaintiff had been rightly decreed by the High Court

Appeal was dismissed.

2020 SCMR 1621 SUPREME-COURT Judicial Precedent

O. XIV, R. 1 & O. XXXVIISummary suitIssues, framing ofDefendant raising objection regarding framing of issues for the first time before the Supreme Court

Before the Supreme Court when the pleadings of the parties were in their knowledge and both the parties had led evidence of their own choice in the shape of oral as well as documentary, the objection of non-framing of proper issues was not relevant

Appeal was dismissed.

2020 CLD 1427 SUPREME-COURT Judicial Precedent

O. XIV, R. 1 & O. XXXVIISummary suitIssues, framing ofDefendant raising objection regarding framing of issues for the first time before the Supreme Court

Before the Supreme Court when the pleadings of the parties were in their knowledge and both the parties had led evidence of their own choice in the shape of oral as well as documentary, the objection of non-framing of proper issues was not relevant

Appeal was dismissed.

2020 CLC 659 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S.12(2) & O. XXXVII, R. 2Qanun-e-Shahadat (10 of 1984), Art. 33Summary suitFraud and misrepresentationAppointment of a referee on the statement of counsel for the partiesScopeDecree, setting aside ofParties jointly expressed their intention for resolution of controversy through their counselReferee was appointed on the statements of the counsel for the partiesRefree submitted his reportTrial Court passed decree in the light of report of refereeContention of petitioner was that he had not authorized his counsel to record conceding statementPetition for setting aside of a decree was dismissed by the Trial CourtValidityReferee could only furnish information to the Court as per his personal knowledgeAcquisition of such knowledge was to precede appointment of referee and not subsequent thereto

Such information when furnished did assume the character of an admission of the parties and result in a decision of the lis on the basis thereof

Where a person was called upon to decide the suit after receiving evidence and hearing arguments or collecting material then his role could not be termed as of a referee

Where referee proceeded to examine the witness, hear the parties to reach a conclusion or resolve the dispute then his conclusion would be a decision which could not be treated by the Court as a statement of the referee

Trial Court had proceeded in a mechanical manner and passed a decree on the assumption as if it was statement by referee

Appointment of a counsel as referee could not denude the petitioner of his right to object and challenge the report on the ground of collusion and transgression of mandate as referee

Parties, in the present case, never agreed that referee should record statement but dispute was entrusted to the referee for decision

Mere using of the word "referee" could not render the report to be deemed to be an information in his personal knowledge to make it an admission under Art. 33 of Qanun-e-Shahadat, 1984

No evidence had been recorded by the referee nor any inquiry had been conducted before filing report before the Court

Report of referee could only be treated as award which could not be admitted unless the parties were afforded opportunity to file their objections

Impugned decree had been passed without proper hearing to the petitioner and without permitting objections, therefore, the same was without jurisdiction and void ab initio

Impugned order passed by the Trial Court was set aside and application under S.12(2) of C.P.C. was accepted

Matter was remanded to the Trial Court with the direction to decide the same afresh after affording opportunity to the parties to file objections to the report of referee and lead evidence in support thereof

Revision was allowed, in circumstances.

2017 PLD 41 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

O. XXXVII, Rr. 2 & 3Summary suitExecution petitionObjectionAdditional dowerScopeExecuting Court attached property of judgment-debtor

Contention of applicant was that she had entered into marriage with the judgment-debtor and property in question (attached property) had been given to her against dower

Objection petition was dismissed by the Executing Court

Validity

No concept of additional dower existed

Dower in question was allegedly settled after almost four years of the marriage

Spouses could exchange gifts during their matrimonial life but such gifted property could not be given the status of "dower"

Judgment-debtor had not finally transferred the property in question in favour of applicant

Applicant had filed a suit for recovery of her dower and till its final conclusion she could not claim to be having any lien over such property

Applicant could not frustrate the proceedings of execution of decree granted in favour of respondent

Appeal was dismissed in circumstances.

2017 CLCN 233 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Art. 64-ASummary suitLimitation

Three years limitation had been provided for a summary suit when debt had become payable.

2016 YLRN 79 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 5Civil Procedure Code (V of 1908), S.149 & O. XXXVII, Rr. 2 & 3Summary suitAppealOffice objectionSupply of court-fee after period of limitationDiscretion of courtCondonation of delayScope

Contention of appellant was that due to his poor financial position he could not affix court-fee with the appeal at relevant time

Validity

Office raised objection on the memorandum of appeal and returned the same for removal of such objection within a period of three days

Appellant filed present appeal after eight months after removal of such objection which was received by the office without any objection

Section 149, C.P.C. empowered the court at any stage to allow the supply of deficiency in court-fee and upon such payment the memorandum of appeal should have the same force and effect if such court-fee had been paid in the first instance

Discretion of court was not to be exercised arbitrarily or capriciously but judiciously and with care

Such discretion might be exercised in favour of litigant except in case of contumacy or mala fide or negligence

Contention of appellant with regard to his poor financial position and getting loan for payment of court-fee was supported by an affidavit and same was not rebutted by counter-affidavit

No material was on record to suppose that the appellant was guilty of contumacy or he had deliberately avoided to pay court-fee

Delay in complying with office objection was condoned and court-fee deposited by the appellant was accepted in circumstances.