KAUSAR SULTANA HUSSAIN, J. This appeal was allowed, whereby through a short order announced by us on 12.12.2022 for the reasons to be recorded later the matter was remanded back to the learned trial Court with direction to pass an appropriate order on leave to defend application afresh preferably within a period of 15 days from the date of hearing of both the parties. Following are the reasons for allowing of this appeal.
2. This appeal under section 96 of the Code of Civil Procedure 1908 was preferred by the appellant/defendant against the impugned Order and Decree dated 10.05.2022, passed by learned Vlth Additional District Judge, Karachi South in Summary Suit No.47 of 2021, filed by respondent No.1/plaintiff which was decreed against the appellant/ defendant to the extent of amount of Rs.12,000,000/- (Twelve Million) along with markup @ 6% per annum from the date of institution of the Suit till realization of the decretal amount.
3. Briefly, the facts of the case are that the respondent No.1/plaintiff was married with the appellant/defendant and out of their wedlock three children were born, two daughters and one son. Both daughters are studying in Canada and respondent No.1/plaintiff is bearing all their educational expenses from the money she had inherited from her father. The appellant/defendant had demanded Rs.2,000,000/- as loan from the respondent No.1/plaintiff, which she gave to him.
Thereafter the appellant/defendant in June, 2019 once again had demanded 160 tolas of gold biscuits as loan from the respondent No.1/plaintiff, who realizing the nature of the appellant/defendant had received post-dated cheque No.00000082 dated 01.01.2020 in the sum of Rs,12,000,000/- (Twelve Millions) from him on the same day, but on presentation, said cheque was bounced on 11.06.2020 due to insufficient funds. The respondent No.1/plaintiff contacted the appellant/defendant but she did not get a favorable response, whereupon she lodged an FIR No.280/2020, under section 489-F, P.P.C. against the appellant/ defendant on 12.06.2020 and proclaimed delegated power of divorce upon herself via divorce deed dated 07-07-2020. It is further averred in the plaint that father of appellant/defendant had filed a Suit for Cancellation, Declaration, Damages and Permanent Injunction, bearing No, 90 of 2020 against the respondent No.1/plaintiff, appellant/ defendant and Bank, in which the present appellant/defendant admitted the subject loan of Rs.12,000,000/-. That the appellant/defendant despite repeated efforts by the respondent No. 1/plaintiff in this regard had deliberately remained in default of his obligations towards the respondent No.1/plaintiff to date, hence the respondent No.1/plaintiff filed a Summary Suit under Order XX XVII, Rules 1 and 2, read with section 151, C.P.C. for recovery of Rs.12,000,000/- against the appellant/defendant the prayers to direct the appellant/defendant to pay an amount of Rs. 12,000,000/- (Twelve Millions) plus markup at the rate of 15% per annum from the date of issuing the cheque till finalization of suit and recovery of the whole amount from the appellant/defendant.
4. Record reveals that after admission of the instant Suit No. 47 of 2021 by the learned trial Court, filed by respondent/plaintiff, notices on prescribed performa were served upon the appellant/defendant by way of pasting and Courier. Thereafter, learned counsel for the appellant/ defendant filed power and received copy of plaint on 01.07.2021 and on 14.07.2021, filed an application for grant of leave to defend the said suit, whereupon learned counsel for the respondent No.1/plaintiff filed counter affidavit.
5. After hearing the learned counsel for the parties, the learned trial Court has announced the impugned order dated 10.05.2022. whereby the application of the appellant/defendant for leave to defend was dismissed and the suit of respondent/plaintiff was decreed in sum of Rs. 12,000,000/- (Twelve Millions) along with markup @ 6% per annum from the date of institution of the suit till realization of the decretal amount, hence this appeal.
6. Mr. Shahzeb Akhtar Khan, learned counsel for the appellant/defendant has strongly challenged the impugned Order and Decree dated 10.05.2022 by submitting that the impugned order and decree are the outcome of misreading and non-reading of the pleadings and evidence on record as trial Court has failed to apply its judicious mind and to appreciate or consider the facts and points raised by the appellant/defendant in his final arguments. He further contended that the observation made by the learned trial Court that the appellant/defendant and his father in Civil Suit No. 90 of 2020 have admitted the claim of the respondent No.1/plaintiff in respect of lending a loan of 160 tola gold from her is misconceived. while no such admission whatsoever had ever been made by the appellant/defendant or his father in Civil Suit No. 90 of 2020. The impugned order is completely silent on the grounds adduced by the appellant/defendant and is thus a non-speaking order. He further submits that nothing was brought on record by the respondent No. 1/plaintiff to establish the existence of 160 tola gold biscuits allegedly given by her to the appellant/defendant while the Wealth Statements of the respondent No. 1/plaintiff filed with the FBR enclosed by the appellant/defendant with his leave to defend application discloses that the respondent No. 1/plaintiff owns gold ornaments amounting to PKR 3,000,000/-(Three Million) only, which show that she had never been an owner of 160 tola gold. The learned counsel for the appellant/defendant argued that no agreement/receipt for lending Rs. 12,000,000/- or 60 tola gold exists between the respondent No. 1/plaintiff and the appellant/defendant, np gold receipts were produced by the respondent No. 1/plaintiff of her having purchased 160 tola gold. Per learned counsel the contention of the appellant/ defendant in his defence is that he used to hand over blank signed cheques to the respondent No. 1/plaintiff is corroborated by the Bank Statement of the appellant/defendant.
The learned counsel for the appellant/defendant submits that according to section 118 of Negotiable Instruments Act, 1881, in a summary suit, the onus is on the defendant to prove that the cheque was executed without any consideration, if the defendant succeeds in discharging the said onus, the Courts ought to allow the applications for leave to defend since it is by now a settled law that where the defendant discloses upon his affidavit, facts which may constitute a plausible defence or even show that there is some substantial question of fact or law, which needs to be tried or investigated into, then he is entitled to leave to defend. The learned counsel for the appellant/defendant in support of his contentions has relied upon the following Case Laws:- i. 2001 CLC 653, ii. 2004 CLC 356, iii. 2020 CLC 1289, iv. 1991 CLC 442 and v. PLD 1963 SC 163
7. In the judgment reported in 2001 CLC 653, relied upon by the appellant's counsel the following principles were laid down for grant of leave to defend the suit: a) If the defendant satisfies the Court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the defendant is entitled to unconditional leave to defend."
8. The principle for grant and refusal of leave to defend a suit was laid down by the Honorable Supreme Court in the case reported as ... PLD 1963 SC 163, and relied upon by the learned counsel for the appellant/defendant, wherein it is held that: "In a suit of this nature where the defendant discloses upon his affidavits facts which may constitute a plausible defence or even show that there is some substantial question of fact or law which needs to be tried or investigated into, then he is entitled to leave to defend. What is more is that even if the defence set up by vague or unsatisfactory or there be a doubt as to its genuineness, leave should not be refused altogether but the defendant should be put on terms either to furnish security or to deposit the amount claimed in Court."
9. The learned counsel for the appellant/defendant has further submitted that taking into consideration the settled law governing the grant or refusal of leave to defend a summary suit, and the multitude of grounds pleaded by the appellant before the learned trial Court, the impugned order is liable to be set aside, hence the instant appeal may be allowed and the application for leave to defend as filed by the appellant/defendant is liable to be allowed unconditionally.
10. On the contrary the learned counsel for respondent No. 1/ plaintiff has argued that the 1st appeal under section 96 of the Code of Civil Procedure, 1908, presented by the appellant is not maintainable under law and the same is liable to be dismissed; that in the month of June 2019 due to high inflation rate in the country the appellant/ defendant asked from the respondent No. 1/plaintiff for a loan in the shape of 160 Tolas gold, which she had received from her father in shape of dowry at the time of her wedding in the year 1995, accordingly a Loan Agreement was drafted and got attested between the respondent No.1/plaintiff and appellant/defendant; that the appellant/defendant issued a postdated cheque bearing No.00000082 amounting to Rs.
12,000,000/- and filled the date of the cheque to be 01.01.2020; the father of the appellant/defendant had filed a Suit No. 90 of 2020 against the respondent No.1/plaintiff, wherein he has accepted the subject cheque; that the said cheque was bounced on 11.06.2020 from the bank due to insufficient funds; the respondent No. 1/plaintiff accordingly contacted the appellant/defendant, however she did not get a favorable response as at that time the appellant/defendant had been residing with his father at his residence since January, 2020; the respondent No.1/plaintiff then proceeded to lodge an FIR No.280 of 2020, under section 489-F, P.P.C. against the appellant/defendant on 12.06.2020 and further instituted instant Summary Suit No.47 of 2021 against him as well; that vide order dated 10.05.2022 the leave to appear and defend the Summary Suit No.47 of 2021 on behalf of the appellant/defendant was disallowed by the trial Court while the Summary Suit was decreed in favor of the respondent No.1/plaintiff; the appellant/defendant in order to mislead this Court is denying the existence of the Loan Agreement.
The learned counsel for the respondent No. 1/plaintiff requests that the instant appeal may be dismissed as the same is not maintainable under the law.
11. After hearing arguments of both the side at length, perusal of record and relevant laws, it revealed that admittedly the relationship between the parties as husband and wife was in existence when the disputed cheque was issued by the appellant/defendant. Through filing the instant Summary Suit the respondent No.1/plaintiff claimed that in June, 2019 the appellant/defendant received 160 tola gold from her as loan and against such loan she received a postdated cheque dated 01.0112020 in 'the siitn of RS. 12,000;000/- (Twelve Millions) from the appellant/defendant, which was later on presented before the Bank concerned on 11.06.2020, but it was dishonoured due to insufficient funds in his account, whereupon the respondent No.1/plaintiff lodged an FIR No. 280 of 2020, under section 489-F, P.P.C. against her husband/the appellant and also filed subject Suit No. 47 of 2021, under Order XXXVII, Rule 2, C.P.C. The appellant/defendant has filed an application under Order XXXVII, Rule 3, C.P.C in the said suit of the respondent No.1/plaintiff, wherein he has not only denied the claim of the respondent No.1/plaintiff of lending 160 tola gold from her as loan, but also claimed against the respondent No.1/plaintiff that owing to the trust he had for his wife (respondent No.1/plaintiff) arising out of the sacred bond of marriage used to give blank signed cheques to her for the purpose of running household expenses and/or unexpected expenditures. The learned trial Court while deciding an application of the appellant/ defendant filed under Order XXXVII, Rule 3, C.P.C. for leave to defend did not consider the version/claim of the appellant/defendant. The appellant/defendant has enclosed his affidavit along with an application for leave to defend, which show that the claim of the appellant/defendant has substantial question of facts and law and in order to ascertain the truth of the facts trial by the Court through recording evidence of both side is expedient.
12. The principle for allowing or disallowing leave to defend application has been laid down by the Hon'ble Supreme Court in the case reported as 'Fine Textile Mills Ltd.,, Karachi v. Haji Umar published in PLD 1963 SC 163' (relied upon by the learned counsel for the appellant/defendant) it is held that:- "In a suit of this nature where the defendant discloses upon his affidavits facts which may constitute a plausible defense or even show that there is some substantial question of fact or law which needs to be tried or investigated into, then he is entitled to leave to defend. What is more is that even if the defense set up be vague or unsatisfactory or there be a doubt as to its genuineness, leave should not be refused altogether but the defendant should be put on terms either to furnish security, or to deposit the amount claimed in Court."
13. In the present case, although the appellant/defendant has not denied issuance of subject cheque with his signature but as per his claim, he gave to his wife blank cheque for running daily expenses and unexpected expenditure of their home.
14. Undoubtly, under section 118 of the Negotiable Instruments Act, presumption is attached to negotiable instrument and the burden lies upon the person denying the same to prove contrary but the presumption is rebuttable by evidence. Admittedly the parties were spouse at the relevant time so there may be probability of the instance taken by the husband, therefore, without providing an opportunity to the appellant/defendant to prove his instance through leading evidence cannot be discarded straightaway on the basis of presumption that the version/plea of the appellant/defendant will be wrong or erroneous. The respondent No.1/plaintiff has denied the claim of the appellant/defendant through her Counter Affidavit yet it is difficult at this stage to decide such dispute in absence of evidence of the parties. While perusing the impugned order it is noticed that the learned trial Court has declined the leave to defend application of the appellant/defendant on the premise of relying the contents of Written Statement of the appellant/defendant allegedly filed by him in another Suit No. 90 of 2020 instituted by the same respondent No. 1/plaintiff against her former father in law. The learned trial Court while dismissing the said application of the appellant/defendant to defend did not consider the legal status of such pleadings of another suit, wherein no evidence was recorded then how its contents could be treated as proved and believable as true and correct. It is well settled law that the contents of pleadings of any other suit cannot be considered in another matter for deciding the fate of it, which suits have no nexus with each other.
15. Upshot of above discussion is that prime facie, there seems substantive dispute between the parties which require deeper enquiry, therefore leave to defend application of the appellant/defendant should be heard and decided afresh by the learned trial Court. The appellant/ defendant therefore, is entitled to be heard on his application for leave to defend afresh and decide it by keeping in view the substance of the dispute and judgments of superior Courts in this regard. The instant appeal was allowed by this bench through short order and the matter was ordered to be remanded to the learned trial Court for de novo consideration with direction to pass appropriate order on leave to defend application afresh hearing both the side, preferably within 15 days from the date of hearing both the parties. Appeal allowed.