SHAHNAWAZ TARIQ, J.---Through the captioned first appeal, appellant Anwar Ahmed Khan Yousuf Zai has impugned order dated 23.02.2012, and decree dated 29.02.2012, passed by the learned VI Additional District Judge, Karachi South, whereby summary suit No.39 of 2011, filed by the appellant against the respondents was dismissed.
2. The relevant facts spelt out from the instant civil appeal are that the appellant filed summery suit before the Court of District Judge, Karachi South, which was transferred to the Court of VI Additional District Judge, Karachi South, for disposal in accordance with law. It is averred that respondents are dealing in the business of shipping in the name and style of Messrs GYRO Logistic Shipping and were facing financial crises. The respondents have a cordial relationship with appellant, therefore, respondent No.1 requested the appellant for friendly loan and appellant paid Rs.25,00,000/- With promise to return the said amount within the period of one month. Afterwards, on the demand of appellant to return the loan, the respondent No.1 issued a cheque in favour of appellant for the sum of Rs.25,00,000/-. The appellant deposited the said cheque in the account for encasement but it was returned with remarks 'funds in sufficient'. The appellant again contacted the respondents and communicated the factum of nonpayment but they replied that they were not in position to repay the loan amount due to their financial conditions and promised to pay the said amount soon.
Subsequently, respondents again approached appellant and requested for more friendly loan of Rs.400,000/- which the appellant paid and respondent No.1 executed the promissory note as well as acknowledgment receipt. Thereafter the respondent No.1 requested the appellant for another friendly loan of Rs.347,265/- which he again paid and respondent No.1 executed the promissory note with acknowledgment receipt. Later on, the respondents again wished for payment of Rs.700,000/- as loan and the appellant paid the said amount through cheque and in response the respondent No.1 executed a promissory note with acknowledgment receipt.
3. It is further stated that the appellant in the month of January of 2011 requested respondents to return the loan, and they promised to pay the said loan within the period of one month. The appellant again in the month of March of 2011 approached the respondents to clear the said loans but they showed their inability to pay the loan due to their financial conditions and finally in the first week of April of 2011, they refused to pay the above referred loans. It is further asserted that ultimately the appellant filed a summary suit along with application under section 5 of Limitation Act, 1908, but the learned trial Court without pursuing the material available on record, dismissed the application for con donation of delay along with the entire summary suit.
4. Learned counsel for the appellant contended that the findings of the learned trial Court are contrary to facts as well as law. He submitted that appellant has filed summary suit on the basis of a dishonored cheque and three promissory notes along with acknowledgement receipts executed on different dates, while the summery suit was presented on 01.08.2011, before the concerned Court as such there was no delay in filing the suit but the learned trial Court without scrutinizing the material properly has passed the impugned order and decree as such the same are liable to be set-aside. He further contended that the learned trial Court has not considered the fact that the cause of action was continuously accruing to the appellant as and when the respondents have issued the cheque and executed the promissory notes and their acknowledgements. He further submitted that the appellant had moved application for condonation of delay because he was seriously ill as both his eyes were operated and also inadvertently filed said suit in High Court but the learned trial Court had not properly considered these relevant facts. He further emphasized that the learned trial Court had wrongly dismissed the entire suit without considering the admissibility of the promissory notes executed within the period of 3 years.
5. Learned counsel for the respondents contended that the order passed by the learned trial Court is just and proper, hence maintainable. He further contended that learned trial Court has properly examined the objections filed by the respondents and other relevant material placed on record. He submitted that appellant had failed to furnish plausible explanation for the delay in filing the summery suit, therefore, both, application for condonation of delay and main suit were lightly declined and the instant appeal is also liable to be dismissed.
6. I have heard learned counsel for the parties and perused the material available on record meticulously which emanates that appellant gave friendly loans to respondents on different occasions. Initially, appellant paid the sum of Rs.25,00,000/- on 02.05.2008, through cheques to the respondent No.
1. Thereafter on the demand of appellant to refund the said loan, respondent No.1 issued a cheque dated 10.06.2008, in the sum of Rs.25,00,000/- in favour of the appellant, but said cheque was dishonored on presentation before the bank on the ground of 'funds in sufficient'. The appellant informed the factum of dishonoring of the cheque to respondents and demanded the said amount but they had shown their inability to repay the same due to their financial crises. Subsequently, respondents again requested the appellant for more friendly loans and he paid Rs.400,000, Rs.347,265 and Rs.700,000 on 12.03.2009, 12.04.2009 and 03.01.2010, respectively, to respondent No ,1 through cheques who executed promissory notes and acknowledgment receipts in favour of the appellant.
7. It is further reflected that on failure to refund the loan by the respondents, the appellant ultimately filed summery suit under Order XXXVII Rules 1 and 2, C.P.C. For recovery of Rs.39,47,265/- against the respondents before the competent Court along with an application under Section 5 of Limitation Act, 1908, for the condonation of delay. The learned trial Court did not consider such application and simultaneously subject suit filed by the appellant was dismissed in limine.
8. Indeed the appellant gave four friendly loans on different dates to the respondents for the total sum of Rs.39,47,265/-. It is further transpired that at the first instance, the respondent No.1 issued a cheque dated 10.06.2008, for the sum of Rs.25,00,000/- in the favour of appellant which was bounced on 25.06.2008. Similarly, the first promissory note and acknowledgement receipt regarding Rs.400,000/- were executed on 12.03.2009, second promissory note and acknowledgement receipt for Rs.347,265/- were executed on 12.04.2009, and third promissory note and acknowledgement receipt for Rs.700,000/- were executed on 03.01.2010. Consequently, the appellant filed summery suit for the recovery of entire loan amounts under Order XXXVII Rules 1 and 2 C.P.C. Before the Court of learned District Judge, Karachi South, on 01.08.2011. Under Article 76 of the first schedule of the Limitation Act, 1908, any suit for the recovery of amount on the strength of cheque or promissory note can be filed within the period of three years. From the bear examination of the above A dates it is crystal clear that the cheque issued by the respondent No.1 for Rs.25,00,000/- was dishonored on 25.06.2008, which apparently seems to be time barred for the purpose of instituting suit for recovery, while the suit pertaining to all the three promissory notes is well in time as such the appellant cannot be deprived from his right to sue for recovery of outstanding dues against the respondents.
9. Moreover, it was incumbent upon the learned trial Court to examine all promissory notes and cheque meticulously and separately while dealing with the question of limitation. It is a settled law that when the suit for recovery is filed regarding the multiple claims and out of which some claims are barred by the Limitation Act while other claims are covered under the prescribed limitation, then the entire suit cannot be dismissed on the basis of time barred claims.
10. It is well settled law that the plaint cannot be rejected in piecemeal and in case of manifold cause of actions if anyone of them is maintainable, the Court shall decide the entire suit after recording the evidence of the parties supported with their relevant documents and the questions pertaining to the maintainability and non-maintainability of the claims raised by the claimant would be decided at the judgment.
11. In case of Valueg Old Limited and 2 others v. United Bank Limited PLD 1999 Karachi 1, it has been observed that Court had no jurisdiction to grant some of reliefs claimed in plaint while it had jurisdiction in respect of other reliefs, viz, damages.
12. It is significant to mention that the respondents did not file the leave to defend the suit which was mandatory and due to its non-filing, the respondents had to suffer its consequences, but they had filed their objections in subject suit which were considered by the learned Trial Court while passing the impugned order.
13. In case of Muhammad Ashraf v. Habib Bank Limited, 2005 CLD 1367, it has been observed that concept of leave to defend requires that the defendant should come up with a positive defence of a particular fact which has to be supported by certain documentary evidence to convince the Court that there was sufficient grounds for granting leave to defend. Mere denial of the execution of a deed will not be sufficient for the exercise of such discretion by the Court.
14. In case of United Bank Ltd. v Mrs. Bilquees Begum and 3 others 1988 CLC 1613, it was observed that where no application for leave to defend suit had been filed by defendant, consideration in ic.Pect of negotiable instruments, is to be presumed under law. No negotiable instrument could be held to be without consideration unless such presumption had been rebutted. In absence of application for leave to defend suit by defendant, presumption of consideration in respect of negotiable instruments, could not be rebutted and same would have to be decreed as provided by provisions of R.2(2) of 0. XXXVII of C.P.C. Court would not go into the issues while decreeing the suit.
15. In case of Phool Badshah v. ADBP, 2012 SCM R 1688, the Hon'able Supreme Court has observed that provisions of Order VII, Rule 7, C.P.C. Empowered the Court to grant an effective or ancillary relief even if not prayed, as the plaint as a whole was to be looked into in order to determine relief for which plaintiff was entitled, however, no relief could be granted upon facts and documents not disclosed in the pleadings.
16. Considering the above facts, circumstance and case law, I am of the considered view that the suit of the appellant should have been adjudicated under the law, but the outright rejection of the plaint in such superficial manner without considering the claims, documents and recording the evidence of the parties, was purely a material irregularity and illegality. Resultantly, the impugned order and decree passed by the trial Court are not sustainable under the law.
17. As the sequel of the discussion made supra, the impugned order dated 23.02.2012, and decree dated 29.02.2012, passed by the learned VI Additional District Judge, Karachi South, are hereby set aside. Consequently, instant civil appeal stands allowed and the learned trial Court is directed to decide the suit in view of the observations made supra and strictly on merits after recording the evidence of the parties. The Learned trial Court shall decide all the claims together according to the provisions of the Limitation Act, 1908, pertaining to the maintainability of each claim for recovery.