' RAUF AHMAD SHEIKH, J.- The petitioner has assailed the vires of order dated 12.11.2007 passed by the learned Civil Judge, Pind Dadan Khan, whereby the evidence of Arshad Mahmood Kamal P.W.
Was recorded and the right to cross-examine the witness was closed and the judgment dated 8- 7-2008, whereby a.Revision petition filed by him was dismissed.
2. The facts, in brief, as emerge on perusal of the record are that the plaintiff/respondent No,l filed a suit for possession through preemption against the petitioner/defendant. This suit was fixed for evidence for 20-11-2007.On 10-10-2007 the respondent/defendant moved an application with the contention that Arshad Mahmood Kamal P.W. Was scheduled to leave for Dubai on 2-11-2007, where he works to earn his livelihood so his evidence be recorded by fixing the suit for an early date. The notice was issued to the petitioner for 18-10-2007, 25-10-2007,. 30,10-2007 , 2-1-2007 , 8-11- 2007 and 12-11-2007. The learned trial Court held that the service was effected through Kh. Nasir Khurshid, Advocate, learned counsel for the petitioner, who contended that the petitioner was living in a foreign country so his personal service be effected but the 'Wakalatnama' of the counsel was intact so the service was complete. It was also observed that the registered cover envelopes were received back with the report that the petitioner was in foreign country and the members of the family had refused to accept the same. Thereafter the learned trial Court passed an order that statement of the witness be recorded as he had shown his confirmed Air ticket for Dubai , for 15-11- 2007 and proceeded on to close the right of cross-examination as no one appeared on behalf of the petitioner.
3. Learned counsel for the petitioner has contended that the learned trial Court could have not changed the date of hearing fixed by it; that the petitioner was not served in accordance with law so tie had no knowledge about the change of the date of hearing; that the right of cross- examination could have not been taken away in a suit, where valuable rights of the parties qua immovable property are at stake and that the illegality committed by the learned trial court was not rectified by the learned Additional District Judge so both the courts have failed to perform their duties in accordance with law.
4. Learned counsel for respondent No,l has vehemently opposed the petition. It is contended that the witness was scheduled to go abroad on 2-11-2007 so the application was moved under compulsion but the petitioner wilfully avoided the personal service and the learned counsel was duly served but he raised a flimsy objection that the petitioner be served in person although the "Wakalatnama" was intact. It is contended that the service through counsel is complete and as such the learned trial. Court on production of the O.K. Ticket of the witness recorded his evidence in accordance with law.
5. Order XVIH, Rule I6, C.P.C, clearly provides that if a witness is about to leave the jurisdiction of the court or there is any other sufficient cause available, the court may record the evidence of such witness immediately. In this case, the application was moved well in time and in spite of repeated notices the personal service could not be effected but the same was effected through the learned counsel for the petitioner. The 'Wakalatnama' of the counsel for the petitioner was intact U so he could have not insisted on petitioner's personal service. Under1 Order III, Rule 5, C.P.C., the process of the court can be served on the party through the Pleader. The Pleader in whose favour the '
Wakalatnama' is duly executed by the part cannot refuse to accept the service on the ground that the personal service be ensured. In these circumstances, the learned trial Court rightly observed that the service was complete and proceeded on to record the evidence. The petitioner had opted to remain away from the court in spite of service through counsel so the learned trial Court was left with no option but to close the right of cross-examination. The impugned order of the learned trial Court and the judgment of the learned Additional District Judge do not suffer from any illegality or infirmity. The writ petition is without merits and the same is hereby dismissed.
2013 C I. C 85 [Lahore] Before Shujaat Ali Khan, J MUHAMMAD ADNAN (MUHAMMAD IRFAN)--Petitioner versus . ADDITIONAL DISTRICT JUDGE and others-Respondents Civil Revision No,2275 of 2012, decided on 20th July, 2012.
(a) Civil Procedure Code (V of 1908)- -O. XXXVH, R. 3-Suit for recovery-Direction to the defendant lo deposit disputed amount in court- Scope-Application for leave to defend by the defendant was allowed with the direction to the defendant to deposit the recovery amount in the court-Defendant contended that condition on the defendant for depositing the said amount with the court was arbitrary and therefore, the order of the Trial Court should be set aside to such extent-Validity-Court under O.XXXVII, Rule 3, C.P.C, had the discretion lo grant leave to defend conditionally or unconditionally and could, amongst other things, direct payment of the amount in dispute to be deposited with the court -No illegality in the impugned order having been found, revision was dismissed, [p. 87] A Bashumal v. Dr. Zahoor Ahmad Sheikh 20Q8 SCMR 39; Abdu! Karim Mengal v. Sultan Badshah 2010 YLR 2596 and Muhammad Azad v. Malik Zahoor 2008 CLD 1128 rel.
(b) Negotiable Instruments Act (XXVI of 1881)- -S. 118-Execution of a cheque, printa facie, carried the presumption that the same was issued against some consideration, [p. 88] B Muhammad Azhar Sulehria for Petitioner.
' SHUJAAT ALI KHAN, J.- By means of this revision petition the petitioner has called in question the vires of order dated 5-7-2012 whereby the learned Additional District Judge, Hafizabad while accepting the application of the petitioner for leave to appear and defend the suit filed by respondent No,2 for recovery of Rs,2!,00,000/- on the basis of cheque issued by the petitioner, directed the petitioner to deposit the amount in question in the Court.
2.. Briefly put, the respondent No,2 filed a suit under Order XXXVll, C.P.C, for recovery of Rs,21,00,000/- against the petitioner. The petitioner filed an application for grant of leave to appear and defend the suit which came up for final hearing on 5-7-2012 when the same was allowed and the petitioner was directed to deposit Rs,21,00,000/- in the Court. Aggrieved by the said order the petitioner . Has filed the instant petition for setting aside thereof. Being confronted with the query that if the prayer made in this revision petition is granted, the order regarding grant of leave to appear and defend the suit would be no more in the field and the application filed by the petitioner would stand dismissed, learned counsel for the petitioner while conceding his mistake request that the prayer in this petition be confined to the extent of deposit of Rs,21,00,000/-.
3. Learned counsel for the petitioner contends that while passing the impugned order the learned Additional District Judge had, in a sense, decreed the suit of the petitioner; that the direction of the learned trial Court regarding deposit of amount in dispute is too harsh and arbitrary; that while directing the petitioner to deposit amount in question in the Court the learned trial Court failed to consider that there was nothing on the record to show that the said amount ever paid to the petitioner; that the learned Additional District Judge has illegally exercised his discretion vested in him under Order XXXVH, rule 3, C.P.C, and that in case the impugned order to the extent of deposit of amount in dispute is * not set aside, the petitioner is bound to suffer irreparably.
4. After hearing the learned counsel for the petitioner and going through the documents appended with this petition(???). During the said exercise I have noted that while accepting the application filed by the petitioner for grant of leave to appear and defend the suit the learned trial Court directed the petitioner to deposit the amount in dispute in the Court. The procedure regarding leave to appear and defend has been postulated under rule 3 of Order XXXVH, C.P.C. The said rule, for convenience of reference, is being reproduced hereinbelow:- "Defendant showing defence on merits to have leave to appear. - (1) The Court shall, upon application by the defendant give reave 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 (if."
' As per sub rule (2) (supra), it is the discretion of the Court to grant leave conditionally or unconditionally. Amongst other conditions the Court can direct for payment in the Court. Thus, while passing the impugned order the learned Additional District Judge has committed no illegality. The power of the Court regarding grant of leave to appear and defend the suit has elaborately been dealt with in the cases reported as Bashumal V; Dr. Zahoor Ahmad Sheikh (2008 SCM R 39), Abdul Karim Mengal v. Sultan Badshah (2010 YLR 2596), Muhammad Azad v. Malik Zahoor (2008 CLD 1128 and Muhammad Nazir v. Qadeer Babar. In the case of Abdul Karim Mengal (supra) it has inter alia been held that- "Thus as per Sub-rule (2) of the Rule discretion is given to the trial Court either to grant leave to defend unconditionally or subject to some terms. Giving security is one of the same. As such to this extent the trial Court has the power to call for deposit of security in the matter, there is no illegality to this extent in the impugned order. The only thing which is required to be seen that whether this discretion has been exercised judiciously or not by the concerned court. As per petitioner/defendant there is no justification under the law for imposing of the condition, further the court has mis-exercised its authority by granting leave conditionally. The petitioner/ defendant is not specific in his contentions; he failed to point out any illegality or irregularity in the exercise of discretion by the trial Court. Rather the Petitioner/plaintiff stressed more on merits of the case, whereon no findings can be given at this stage. He further failed to point out any illegality in order made on 8-5-2007. The trial Court has exercised its discretion properly. It is apparent from documents placed on record that a dispute exists between the parties, while they are pursuing against each other on civil as well as on criminal side. In the circumstances the learned trial Court has made an appropriate order, which will not only safeguard the rights of the parties, but also works as blockage in multiplicity of litigation. "
5. Insofar as the contention of the petitioner that there is no proof of the transaction between the petitioner and respondent No,2 is concerned, I am of the view that according to section 118 of the Negotiable Instruments Act, 1881 prima facie execution of a cheque carries the presumption that the same was issued against some B consideration. Thus, the arguments of the learned counsel for the petitioner on this- score are hereby spurned.
6. For what has been discussed above, I am of the view that while passing the impugned order the learned Additional District Judge has committed no illegality justifying interference by this Court in exercise of revisional jurisdiction. Consequently, see no force in this petition which is accordingly hereby dismissed.