' HASAN FEROZ, J.---This appeal is preferred by the appellant on being aggrieved and dissatisfied with the judgment and decree passed in Summary Suit No,66 of 2007 by 1st Additional District Judge, Karachi (East) dated 19-4-2011 whereby the Summary Suit of the respondent brought under Order XXXVII, Rules 1 and 2, C.P.C. For recovery of Rs,4,72,030 has been decreed.
2. Succinctly the facts are that the respondent No,1 is running a business of poultry in the name and style of "Qaderi Poultry Services" and had entered into verbal agreement with the appellant regarding the sale and purchase of poultry birds and feed and in response to such agreement poultry birds and feed were supplied and the appellant issued cheques in favour of the respondent No,1 dated 25-4-2006 for Rs,65,000, cheque dated 27-4-2006 for Rs,55,000, cheque dated 28-4- 2006 for Rs,56,150, cheque dated 4-5-2006 for Rs,50,000 and cheque dated 6-5-2006 for Rs,52,442 all such cheques were dishonoured on their presentation, as such a summary suit for recovery of Rs,4,72,030 was brought against the appellant.
3. Initially the notices by trial Court were served upon the appellant and he filed leave to defend application however thereafter he did not turn-up, therefore, vide order 16-8-2008 his, application was dismissed and an ex parte decree was passed against the appellant by the learned District Judge, Karachi (East) vide judgment dated 23-8-2008. Thereafter the appellant preferred First Appeal No,21 of 2008 before this court against judgment and decree dated 23-8-2008 and this Court vide order dated 24-11-2008 set aside the judgment and decree and remanded the matter to the trial Court for fresh decision and in order to compensate the respondent during the proceedings with the consent of the parties the appellant was directed to deposit cost of Rs,10,000 before the trial Court.
4. The suit proceeded accordingly and the trial Court vide its Judgment dated 19-4-2011 decreed the summary Suit No,66 of 2007 in favour of the respondent to the extent of Rs,4,72,030 with no order as to costs.
5. It may be mentioned here that right from beginning of this Appeal Notice to respondents were issued time and again for service through all three modes, through Bailiff, Courier Service and Registered Post A/D thereafter publication in Newspapers has also been effected so also through pasting however respondent has not turned up and on 11-10-2013 side of respondent was closed where after on 10-12-2013 this matter was heard.
6. I have heard the learned Counsel for the appellant as no one has appeared for the respondent.
7. It has been contended by the learned Counsel for appellant that the trial Court has failed to appreciate the oral as well as documentary evidence produced by the appellant by misreading of the facts. He has further contended that the trial Court has not given proper opportunity to cross- examine the respondent No,1 as the Counsel for the respondent closed its side on 7-4-2010 and the advocate for the appellant filed an application for re-opening the side, on 24-4-2010 and the Counsel for the respondent had given no objection on 29-5-2010 and the matter was adjourned for cross-examination of the respondent and gradually the matter was adjourned up to 25-9-2010 and on 25-9-2010 the learned trial Court once again closed the side and thus the appellant could not cross-examine the respondent No,1 inspite of submission of another application for re-opening the side but the same was dismissed by the learned trial Court vide order dated 12-1-2011.
8. The appellant has further contended that the entire amount of the respondent No,1 has been paid by the appellant to one Mr. Azeem who used to recover the amounts on behalf of the respondent No,1 and such receipt issued by Mr. Azeem have also been brought on record however, Mr. Azeem did not return the cheques. He has also contended that the judgment and decree of trial Court suffers from irregularities and illegalities as such the same is liable to be set aside and the Suit may be dismissed.
9. I have gone through the record which reveals that admittedly the business was being carried out by the parties however, during the course of such business few cheques were issued in favoaur of the respondent No,1 and on presentation the same were dishonoured, therefore, a F.I.R. No,160/2006 was also lodged by the respondent No,1 against the appellant as well as summary suit for recovery of Rs,4,72,030.
10. I have gone through the available material and more precisely the case Diaries in R&P shows the non-appearance of the defendant/appellant side and more specifically the diary dated 25-9- 2010 is self-reflective of the conduct and proceedings on behalf of the appellant wherein the evidence of respondent was recorded on 13-3-2010 and the matter was kept on adjourning until 25-9-2010 but the learned counsel for the appellant did not appear which shows lack of interest and thus appellant side was closed to cross-examine the respondent and the matter was fixed for appellant's evidence. It has also been observed during the perusal of R&Ps that an application for recalling of the order dated 7-4-2010 whereby the side of the defendant No,1 evidence was closed and on presentation of such application it was agreed between the parties that the side of plaintiff may be opened subject to undertaking by the advocate for the appellant to conduct the cross- examination on plaintiff on next date of hearing and the appellant's advocate has made such undertaking dated 29-5-2010 which is in my perusal at page No,21 of R&Ps which the Diary reveals that the matter was gradually adjourned but the counsel for the appellant not shown his interest, as such the side of the respondent No,1 was closed again on 25-9-2010.
11. I have in my consideration the material produced by the parties during the course of the trial viz: certified true copies of the dishonored cheques as well endorsement of the bank and statement of account and other material, which at no point of time was denied by the appellant to have not been issued the same in the favour of the respondent, however in rebuttal he admitted about issuance of cheques by saying that the cheques were issued against which payment has been made to the representative of respondent namely Mr. Azeem, however it could not be ascertained that the payment made to Azeem is the payment against cheques as the cheques remained in possession of the respondent throughout for which no plausible explanation has been put forth by the appellant nor Azeem was summoned in Court so as to establish that the receipt issued by Azeem are in respect of the amounts of the cheques.
12. I am conscious of the status of the Suit being Summary Suit filed under Order XXXVII, Rules 1 and 2, C.P.C. Which under the law provides a summary procedure to deal with cases based on Negotiable Instruments Act, wherein a presumption of correctness lies in favour of document falls within the ambit of that Act one of the fact being that in such cases factum of consideration is not to be proved and under the summary procedure regarding a Suit vis-a-vis ordinary/original form is that the difference is the burden of proof which usually rest on the plaintiff in Original Suit is shifted to the defendant in Summery Suit and such suit starts with an initial advantage of presumption in favour of the plaintiff and the defendant is burdened with discharging the burden of initial presumption. The appellant was granted leave to defend however, after getting leave to, defend, the appellant has not proceeded with the matter diligently and ultimately this matter was decreed ex parte however, the same was set aside by this Court in 1st Appeal and the evidence of the respondent was recorded and on that date cross-examination did not occur where after on 7- 4-2010 due to non-appearance of counsel for appellant, the respondent submitted application to close the side where after on 25-9-2010 when the evidence of respondent was closed and the matter was fixed for the evidence of appellant the advocate for appellant filed application for re- opening of the side so as to cross-examine the respondent and after 13-3-2010 up to 7-4-2010 the cross-examination could not be held. Although the cross-examination to respondent has not been conducted by the appellant side however the perusal of evidence of both the side leads to the irresistible conclusion that the matter revolved in nutshell as to the issuance of the cheques in a business deal for a lawful purpose and in the rebuttal the amount of such cheques has allegedly been made to the representative of the respondent which representative has neither appeared in court nor called by the appellant, therefore, ample opportunity to the appellant is apparent from the record and there seems to me no departure from providing opportunity to the appellant as envisaged under Article 10-A of the Constitution of Pakistan. Since the matter has been decided on merits based on the discussion on the issues which is in my perusal at this stage.
13. I have also in my consideration the essence of section 107 read with Order XLI, Rule 5, C.P.C. And am fortified that instead of remanding the case for providing another opportunity to the appellant, there are plausible grounds for final disposal in this appeal. In this regard I have in my view the decisions of Superior Courts as has been held in 1980 CLC 110 wherein it was held that oral and documentary evidence available on record case was decided instead of being remand to lower Court. I have also in my consideration PLD 1962 Peshawar 28 wherein it has been held that a case cannot be remanded to trial Court in order that it might be reheard or Plaintiff may be given another opportunity to prove his case by calling fresh witnesses which might have been called on first hearing. I have in my view PLD 2001 Lahore 9 where the first appellate Court has to consider such evidence itself for deciding the case instead of remanding the case. I am fortified with the Judgment of Hon'ble Supreme Court reported in PLD 2004 SC 10 wherein it has been held that remand would be ordered in those cases which cannot be decided on the basis of available record as the same would be in the interest of justice however, where evidence on record was sufficient for decision of the case than remand would not be ordered and Court would not remand a case where defect was due to negligence and default of parties desiring remand.
14. In the above perspective; keeping in the view the law applicable and the essence of fair opportunity a thin line passes in between providing further opportunity through remand which does not lean in such circumstances towards defendant/appellant as ample opportunity has been afforded to him yet instead of being diligent in pursuing and defending himself, the negligent conduct showing default on the part of appellant comes out, hence I am not inclined to disturb the Judgment and Decree passed by the trial Court which is hereby maintained and the appeal fails which is accordingly dismissed. However parties to bear their own cost.