The respondent, Muhammad Nawaz Qasuri, filed a suit against the petitioner, Hamid Ullah Khan, under rule 3 of Order XXXVII of the Code of Civil Procedure, for recovery of Rs. 25.000. His claim was based on some cheques issued by the petitioner in favour of the respondent which had been dishonoured.
2. The petitioner sought permission to defend the suit stating that the cheques in question were without consideration. The permission was refused by the District Judge Lahore, whereafter the suit was decreed by him. The petitioner has, therefore, come up in revision to this Court.
3. It was submitted by learned counsel for the petitioner that the petitioner was not to pay any sum to the respondent and that he (petitioner) had issued the cheques in dispute in favour of the respondent at the request of one Muhammad Akram Cheema who owed. The amount in dispute to the respondent. According to the learned counsel, Muhammad Akram Cheema had undertaken to pay the disputed amount to the petitioner but as he did not keep up his promise, he (petitioner) got the cheques dishonoured. It was, therefore, urged by the learned counsel that since the cheques in question were without consideration, the learned trial Court ought to have allowed the petitioner to defend the suit. He cited Fine Textile Mills Ltd., Karachi v. Haji Umar (1), Messrs Khalid Rifat Transport Co. And 2 others v. Commerce Bank Ltd., Karachi (2), Messrs Fulbrite (Pakistan) Ltd..
Karachi v. Messrs United Bank Ltd., Karachi (3), Continental Syndicate of Trade v. The International Express Co., Ltd. (4), and Nazim v. Messrs Habib Bank Ltd., Karachi and another (5) to support his arguments.
4. I have gone through the application made by the petitioner seeking leave to defend the suit. In that application he had simply denied that there was any consideration for the cheques in question. The plea now advanced before me regarding the issuance of cheques at the instance of Muhammad Akram Cheema in the circumstances narrated above was not raised in the said application or otherwise, before the learned District Judge. That plea is, therefore, obviously an afterthought. It is also devoid of force because even upto this time no affidavit of Muhammad Akram Cheema has been filed and the affidavit submitted by the petitioner before me does not make a specific mention of that plea. It, therefore, deserves to be ignored.
5. As for the authorities cited by learned counsel for the petitioner, it was ruled in the case of Fine Textile Mills Ltd., Karachi that where the defendant's affidavits disclose a plausible defence or show that there is some substantial question of fact or law which needs to be tried, he should be permitted to defend the suit. In the case of Messrs Fulbrite (Pakistan)Ltd., Karachi the view expressed was that where an arguable case is made out by the defendant leave to defend the suit should be granted to him. In the case of Nazim it was held that the defendant having a plausible case based on averments of fact or law contained in his defence would be entitled to leave to defend suit. In the case in hand, however, no such plausible defence was put up nor an arguable case was made out before the learned District Judge. It was also not demonstrated before him that a substantial question of law or fact was required to be determined in the instance case. As indicated above, the plea relating to the issue of cheques in dispute at the instance of Muhammad Akram Cheema is not only an afterthough but also without substance. It is, therefore, not acceptable. In this view of the matter, the said three precedent cases are, of no avail to the petitioner.
(1) PLD 1963 SC 163(2) 1973 SC M R_587
(3) PLD 1976 Kar. 478(4) PLD 1959 Kar. 252
(5) 1980 CLC 1185
6. As regards the cases of Messrs Khalid Rifat Transport Co. And 2 others v. Continental Syndicate of Trade, the question involved therein was not in respect of grant or withholding of leave to defend the suit. The controversy raised in the said two cases was with regard to the condition attached to such permission. Therefore, the said two authorities are not relevant to the point in issue.
7. According to rule 3, Order XXXVII of the Code of Civil Procedure, leave to defend a suit filed under the said provisions of law is to be accorded to the defendant if his application for such leave is accompanied by 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". Since in the case before me the petitioner had admitted having issued the cheques in dispute, it was not incumbent on the holder thereof, namely, the respondent, to prove considera-- tion for the said cheques. The petitioner also did not disclose any other facts which could be deemed sufficient, by the learned trial Court, for the purpose of grant of leave to defend the suit.
Before the learned District Judge, the only assertion made by the petitioner for seeking leave was that there was no consideration for the cheques in question but his mere denial of consideration did not warrant the grant of leave. Similar view was expressed in Hussain v. Rajab Ali 1981 C L CIn that case it was held by my learned brother, Aftab Hussain, J., that where it is not incumbent on the holder of a pronote to prove consideration, the permission to defend cannot be given unless there are other facts which are deemed sufficient by the Court to support application for such permission.
8. In view of the above discussion, I feel that the learned District Judge had rightly declined to permit the petitioner to defend the suit in question. His order under challenge does not call for any interference. The civil revision is, therefore, dismissed in limine. s. Q.