Claiming of interest under S.79 of the Negotiable Instruments Act, Plaintiffs had prayed for a decree in the sum of Rs.5,22,000 towards the amount of four dishonoured cheques and also a sum of Rs.15,660 towards interest at the rate of 6% per annum under S.79 of the Negotiable Instruments Act, 1881— Where neither the amount of four dishonoured cheques issued by the defendants was in dispute nor the fact that uptil the institution of the suit no amount had been paid, the plaintiffs in view of S.79 of the Negotiable Instruments Act, 1881 were entitled to claim 6% per annum interest—Suit of the plaintiffs was decreed in the sum of Rs.5.37,660 with cost and also 12% per annum mark- up from the date of institution of suit till realization of decretal amount from the defendants accordingly. 2002 CLD 107 

 

Summary suit for recovery of money—Plea raised by the defendants was that after return of cheques by the Bank with refusal memo., the plaintiff should have again presented the cheques for encashment or should have immediately served notice on the defendant instead of serving such notice after more than eight months—Validity-When intention of defendants for non-payment of the sum mentioned in the cheques was visible to the plaintiffs from their conduct, the plaintiffs were under no legal obligation to present the dishonoured cheques to the drawee Bank again or to have immediately served notice to the defendants. 2002 CLD 107

 

Mark Up :– Plaintiffs had prayed for a decree in the sum of Rs.5,22,000 towards the amount of four dishonoured cheques and also a sum of Rs.15,660 towards interest at the rate of 6% per annum under S.79 of the Negotiable Instruments Act, 1881— Validity—Where neither the amount of four dishonoured cheques issued by the defendants was in dispute nor the fact that uptil the institution of the suit no amount had been paid, the plaintiffs in view of S.79 of the Negotiable Instruments Act, 1881 were entitled to claim 6% per annum interest—Suit of the plaintiffs was decreed in the sum of Rs.5.37,660 with cost and also 12% per annum mark-up from the date of institution of suit till realization of decretal amount from the defendants accordingly, 2002 PLD 107

 

3.         Defendant showing defence on merits to have leave to appear. (1) The Court shall, upon application by the defendant, give leave to appear and to defend the suit, upon affidavits which disclose such facts as would make it incumbent on the holder to prove consideration, or such other facts as the Court may deem sufficient to support the application.

(2)        Leave to defend may be given unconditionally or subject to such terms as to payment into Court, giving security, framing and recording issues or otherwise as the Court thinks fit.

(3) The provisions of Section 5 of the Limitation Act, 1908 (IX of 1908) shall apply to applications under sub-rule (1)].

 

Court Decisions

Leave to appear and Defend :– Court, while granting leave to defend suit, was required to examine all the questions, which could arise by way of defence as deducible on the plea raised by the defendant. 2001 CLC 653

Issuance of the cheques and the same being without consideration required evidence to be led—For the purpose of determining as to whether the disputed cheque was issued without consideration leave to appear and defend the suit was granted—Such leave was granted subject to the defendant, furnishing security, of the amount mentioned on the face of the cheques—Application for leave to defend the suit was disposed of accordingly, 2001 CLC 1156

Impugned order granting leave conditionally to agents to defend suit, is legal and proper and no exception can be taken to it. PLJ 1992 SC 261.

                Where there were  plausible grounds and disputed questions of fact which cannot be overlooked. Unconditional leave to appear and defend suits was  granted. PLJ 1991 Kar. 351.

                There being no application under Section 5 of Limitation Act, question of condoning delay does not arise. PLJ 1990 Kar. 332.

                Defendant in his application for leave to defend suit had made vague and general averments, therefore. District Judge had rightly found that he had failed to make out case for leave to defend suit. Grant of leave to defend suit was not a matter of course or right. To be oblige for such benefit defendant was liable to show such facts which would warrant proving of consideration by plaintiff" to disclose plausible defence which might give rise to triable issues. Leave would be refused if no defence worth the name was made out on facts or in law in application for leave to defend suit. Leave would also be refused where defence disclosed on affidavits was sham or colourable or imaginary and was not to give rise to triable issues. Defendant had neither been able to put forward any defence nor he had been able to raise any triable issues in his application for grant of leave to defend suit. District Judge had thus, rightly rejected defendants' application to defend suit. PLJ 2000 Pesh. 33 = 2000 CLC 199.

                Plaintiff although was in possession of documentary evidence in shape of cheques which were dishonoured by concerned Banks yet defendant had specifically denied his signature on the same and had raised plea that his signatures had been manufactured by plaintiff. Defendant had also raised plea that amount in question was paid in cash and he had produced receipts for payment of amount. Defendant had raised legal as well as factual pleas which could only be decided by allowing parties to lead evidence. Defendant had, thus, made out prima facie case for leave to defend suit. PLJ 1997 Kar. 891 = 1997 CLC 766.

                Law requires that .each day of delay should be explained but no such explanation was offered in application for seeking permission to defend suit'. Nothing was stated in petition for condonation of delay as to how such delay occurred except that Civil Courts were closed in those days being month of August. Courts remain open for urgent matters, however, apart from that Courts having opened for regular work with effect from 1.9.1998. Petition for leave to defend was filed on 15.9-1998 without showing any reason as to what prevented defendant to move such application belated by.. Trial Court was. thus. justified to hold that there was no good ground" for allowing leave to defend suit. Trial Court having acted in judicial manner and without exercising jurisdiction vested in it arbitrarily, impugned order did not suffer from any legal or factual defect so as to call for interference in revisional jurisdiction. PLJ 1999 Lah. 471 = 1999 MLD 2182.

                Leave to defend suit was granted to petitioner provided he furnished bank guarantee equal to amount which was to be recovered through suit. Validity. Defendnat had no right to defend suit without grant of leave by Court. Such relief being discretionary, same has to be exercised judicially on basis of affidavits which must sufficiently support application. Grant of leave could be unconditional or subject to term like security etc. which Court deemed fit. Test of allowing defendant leave to defend suit; would not be on basis that defendant would ultimately succeed. Party concerned must give his case arguable look and grounds raised by him should be in shape of plausible defence so as to displace refutable presumption attached to documents on account of which such more efficacious remedy was sought. Where Court finds that claim of plaintiff was prima facie frivolous or untenable, or where triable issues were raised or where that was question of limitation, leave has to be granted un-conditionally. Court has to satisfy its conscience that there were plausible reasons for allowing leave to defend conditionally or un­conditionally. Perusal of affidavit showed that proper defence had not been taken and same was not in accordance with  O. 37 R. 3 C.P.C. and High Court Rules. Requirement of furnishing of bank guarantee without reasons, imposed harshness to order of leave to defend. High Court in its visitorial jurisdiction substituted words "furnishing of reliable security for the amount involved" instead of words "furnishing of bank guarantee". Case was sent back to Trial Court for proceeding further in the matter. Defective affidavit having been filed by petitioner, he was directed to submit additional affidavit in accordance with requirements of law before Court, failing which it would be deemed that there was no affidavit and, therefore, no petition for leave to defend.  PLJ 2000 Lah. 648 = 2000 CLC 913.

Question raised by defendant which S.C of Pakistan had considered to be of sufficient importance so as to grant leave ..to consider same‑‑Held, grant of leave by S.C by itself was a valid rather binding consideration to hold that defence disclosed raised a triable issue for purposes of grant of leave to defend a suit. P L D 1987 Lah. 290

 

Leave to defend suit conditionally. Petitioner allegedly gave cheque for giving loan to respondent but cheque was dismissed and was not paid by bank as petitioner had no money in his account. Petitioner neither filed any suit for cancellation of cheque nor informed bank to stop payment. Obviously, he has set up very weak defence. Presumption though rebuttable is that cheque in question is for consideration and onus is on petitioner-defendant to prove lack of consideration. In such case imposition of condition of Bank Guarantee cannot be said to be perverse or capricious.  PLJ 1998 Lah. 481 = 1998 CLC 961.

 

Leave granted with condition to furnish bank guarantee. Petitioner having denied issuance of cheques in favour of respondent, its independent 'provisions have been made side by side in Constitution, one authorising President to enhance, from time to time, pension payable to such class of Judges whose length of service is not less than five years and other authorising him to determine rights and privileges in respect of pension payable to every other Judge of High Court. Therefore, P.O. 2 of 1993 serves duel purpose by determining rates of pension admissible to both. In absence of dear intention being spelt out the Article 2(2) of P.O. No. 2 of 1993 is not to extend to such Judges who have not put in less than five years of service, provisions of said Act cannot be interpreted to disadvantage of petitioner. Rights and privileges admissible to petitioner in respect of his pension are now governed under President's Order No. 2 of 1993.  PLJ 1995 Kar. 208 = PLD 1995 Kar. 223.

                Words "otherwise as court thinks fit" gives court a discretion to grant leave to defend to its satisfaction, therefore, there is no legal imfirmity in order of learned trial court for furnishing bank guarantee against subject matter of suit.   PLJ 1997 Lahon- 425 = 1997 MLD 409.

 

Limitation—Limitation period for filing application to defend suit would start running from the day when the copy of the plaint was supplied to the defendant/applicant— Application filed within ten days of receipt of copy of plaint, was within time. 2001 CLC 653.

PLD 1984 Kar. 252 and 1991 CLC 1261 ref.

Failure to issue summons to the defendant in Form 4, Appendex 'B', C.P.C.— Effect—Limitation prescribed for to appear and defend the case did not start running against such defendant, 2001 CLC 1065

 

4.         Power to set aside decree. After decree the Court may, under special circumstances, set aside the decree, and if necessary stay or set aside execution, and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the Court so to do, and on such terms as the Court, thinks fit.

 

Court Decisions

Ex-parte decree. Contention that service was not effected on defendants and they came to know about ex pate decree through private sources, is not tenable and is a frivolous defence. Admittedly all three modes of service namely (1) by publication, (2) by registered post and (3) by bailiff. were adopted and completed and defendant No. 1 was regularly represented but other defendants intentionally and deliberately kept out with a view to come at a later stage to obstruct grant of final decree. Service by all three modes was duly effected and defendants have deliberately avoided to defend suit. PLJ 1995 Kar. 198 = NLR 1995 CLC 790 = PLD 1995 Kar 162.

 

Petition filed before Addl; Distt: Judge as Distt: Judge was on leave. Distt : Judge dismissed application as not filed within specified time and before proper forum. Distt : Judge forgot that under his own orders passed with reference to section 21 and 22 of Civil Courts Ordinance, 1962. he had already delegated his powers to Additional District Judge who was fully authorised and empowered to receive all such documetns in his behalf. Powers exercised by such delegatee are not confined to any normal or summary powers exercised by District Judge but are related to powers exercised by District Judge simpliciter. All powers exercised under Order 37 CPC are powers of District Judge and do fall under C.P.C. and thus can with all convenience be delegated with reference to section 21 and 22 of Civil Courts Ordinance. Orders of District Judge are patently wrong and he has failed to exercise jurisdiction vested in him. PLJ 1996 Pesh. 305 = 1996 MLD 2167.

 

5.         Power to order bill, etc., to be deposited with officer of Court. In any proceedings under the Order the Court may order the bill, hundi or note on which the suit is founded to be forthwith deposited with an officer of the Court, and may further order that all proceedings shall be stayed until the plaintiff gives security for the costs thereof.

 

6.         Recovery of cost of noting non-acceptance dishonoured bill or note. The holder of every dishonoured bill of exchange or promissory note shall have the same remedies for the recovery of the expenses incurred in nothing the same for non-acceptance or non-payment, or otherwise, by reason of such dishonour, as he has under this Order for the recovery of the amount of such bill or note.

 

7.         Procedure in suits. Save as provided by this Order, the procedure in suits hereunder shall be the same as the procedure in suits instituted in the ordinary manner.

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