1. ' The defendants Nos.1 and 2 are the real brothers of the plaintiff while defendant No,3 is a Public Limited Company in which the plaintiff. And defendants Nos,1 and 2 hold shares. The defendants Nos.1 and 2 are even now the share-holders and have control and interest in the defendant No,3.
2. The plaintiff had filed Suit No, 454 of 1978 in the High Court of Sind against the defendants for injunction and account in which a compromise decree was passed on 9-4-1980. Under the decree the plaintiff received from the defendants Nos.1 and 2 Rs, 35 Lacs and immovable property representing his final share in the various companies, and business carried on by the plaintiff and his brothers, as represented by defendants Nos.1 and 2. This was accepted by the plaintiff at that time but the share of the plaintiff in unofficial and undisclosed profits, income and account was left to be decided outside the Court. In consideration of the aforesaid settlement the plaintiff at the request of the defendants Nos.1 and 2 signed, executed and delivered various documents, letters and vouchers including a letter of resignation as Director and letters to Income-tax Authorities, share transfer deed and several other documents. The defendants Nos.1 and 2 executed seven Promissory notes totalling Rs, 1,30,00,000 for the liability for payment of the' unofficial and undisclosed share of assets and profits of the plaintiff. These promissory notes were deposited by the defendants Nos.1 and 2 with a third party agreed upon by mutual consent by way of security and fulfilment of their obligations. Subsequently the plaintiff learnt that the defendants Nos.1 and 2 had not made full and complete disclosure of the un-official profits and income and the plaintiff had been deprived of his 1./3rd share. This followed negotiations between the parties, and it was agreed that the plaintiff was entitled to a sum of Rs, 6,00,00,000 which the defendants Nos.1 and 2 promised to pay to the plaintiff. Consequently in or about December, 1983 the defendants Nos. 1 and 2 handed over to the plaintiff 12 cheques for a total sum of Rs, 6,00,00,000 as specified in para. 7 of the plaint. At the time of handing over the aforesaid 12 cheques the defendants Nos.1 and 2 obtained signature of the plaintiff on several documents including the promissory notes and waiver of all claims as these 12 cheques were issued in full and final satisfaction of his claim. These cheques were presented and were dishonoured. The plaintiff therefore, filed the suit against the defendants.
3. ' The defendants filed this application alleging that the plaintiff and defendant No,2 were directors and share-holders in several Companies, but due to wrongful acts committed by the plaintiff, defendants Nos.1 and 2 suffered loss and have separated from him. The plaintiff filed Suit No, 458 of 1978 in which the exaggerated claim was made, but the matter was settled and the plaintiff was paid Rs,35,00,000 and certain immovable properties were given as his share. The entire claim of the plaintiff was thus satisfied and the plea that the unofficial or unaccounted money was to be accounted and paid to the plaintiff is completely false. It has been stated that the cheques have not been signed by either defendant No,1 or 2 and the signatures are forged. It is further submitted that the cheques filed with plaint were taken out from cheque book issued 10 years back in the name of the defendant No,3 in which the plaintiff and his father-in-law had full access, at the material time. It was further stated that there was no consideration for the cheques alleged to have been issued by the defendants.
4. ' In the counter-affidavit filed by the plaintiff the adverse allegations made by the defendants have been denied and the averments made in the plaint were reiterated. It was stated that decree in Suit No, 455 of 1978 was passed on 9-4-1980 and related only to the official assets, income profit and account. It was pleaded by the plaintiff that the promissory note totaling Rs,1,30,00,000 in favour of the plaintiff were deposited with the third party which has not been denied by the defendants. In this regard copy of correspondence between the plaintiff and defendants Nos.1 and 2 was produced to show that was an understanding between the parties regarding unofficial and undisclosed assets and in this regard it was further alleged that a legal notice was also issued which was not available and would be produced when made available. The defendants then filed a rejoinder in which the material fact to be noted is that they produced a copy of letter of the plaintiff's Advocate dated 11-6-1981 in which a claim was made in respect of Rs, 1,30,00,000 on the basis of seven promissory notes. In the notice it was stated that except for the first installment representing the first promissory note for Rs, 1,30,00,000 payable on 1-6-1980 nothing has . Been paid. Another photo copy of notice dated 27-2-1982 was also filed in which demand was made in respect of only four promissory notes each of the value of Rs, 22,50,000. The defendants also produced a photo copy of a memo dated 16-11-1983 written by the plaintiff to Mr. N.A. Advocate stating that letters written by his Advocate on his behalf are withdrawn by him. According to the defendants after payments were made the promissory _notes were destroyed.
5. ' Mr. Khalid Anwar, the learned counsel for the defendants, has contended that as the dispute between the parties had been compromised in terms of the decree passed in Suit No,. 455 of 1978 the same question cannot be reopened by the plaintiff in the present suit. The present suit is based on a claim that after the decree was passed the defendant agreed to pay the unofficial and unaccounted profits to the plaintiff. There is no document to show that such an agreement was reached between the parties. In this regard the learned counsel for the defendants has relied on paragraphs 8 and 9 which read as follows:- "(8) That the defendants Nos. 1 to 6 have paid the plaintiff the sum of Rs, 35 Lacs by way of full and final payment by means of Pay Orders Nos. PA/1026752 and 0198315 and Rs, 50,000 in cash and the plaintiff has relinquished all or any claim whatever against the defendants and/or any of them and/or their family members and/or the companies in which they are share-holders and/or are interested and the defendants have similarly relinquished all claims against the plaintiff and it is agreed that hereafter none of the parties shall be entitled to make any claim of any nature whatever against any other party. It is also agreed that none of the parties hereto shall lodge any complaints, whether directly or indirectly against any other with any authority.
(9) That the plaintiff hereby unconditionally withdraws all the claims/ allegations made by him against the defendants or any of them whether contained in the plaint or elsewhere and agrees that the defendants have not maintained false accounts or committed any other irregularities/illegalities of any nature whatever and that he has fully satisfied himself regarding the above matters."
6. ' According to the learned counsel it is clear that all claims and allegations made in the suit which included the payment of unaccounted money were also settled between the parties. The contents of paras. 8 and 9 reproduced above are clear and unambiguous and unless a subsequent agreement is fully established any claim which is covered by the decree passed in Suit No, 458 of 1978 can hardly be made subject-matter of subsequent suit between the same parties. Therefore, the burden is entirely on the plaintiff to establish that subsequent to passing of the decree there was an agreement between the parties to pay the unaccounted money. Besides the facts referred by the learned counsel for the defendants to show that there was no such agreement between the parties it has been contended that agreement entered into for recovery of any money obtained illegally would be void, requires consideration which prima facie hits at the root of the plaintiff's claim.
7. Mr. Liaquat Merchant the learned counsel for the plaintiff has contended that the defendants have admitted execution of promissory notes for 13,00,000 and also admitted .To have paid the same as alleged by them, therefore, it is established that a subsequent agreement was made between the parties, thereby the defendants Nos.1 and 2 were to pay the additional amount and the decree did not close the entire chapter between them. The contention of the learned counsel has force to the extent that there seems to be an agreement between the parties for payment of 13,00,000 as witnessed by the promissory notes executed by the defendant No:2 and in respect of which notices were exchanged between the defendants Nos.1 and 2. At no stage they seem to have denied the execution of these promissory notes. From their plea it seems that these promissory notes were discharged by payment. The present suit has not been filed on the basis of these promissory notes.
8. The plea of the plaintiff is that the defendants Nos.1 and 2 agreed to pay Rs, 6,00,00,000 and in pursuance of that agreement they issued post dated cheques. Prima facie there seems to be not evidence on record to show that such an agreement was arrived at between the parties, nor the affidavit of any independent person has been filed before whom such an agreement is alleged to have been arrived at. Merely because the defendants Nos.1 and 2 did not deny the execution of promissory notes does not lead to the conclusion that there was a subsequent agreement for payment of Rs, 6,00,00,000 toward the same account to which the promissory notes related. The circumstances as they stand on record, at this stage, not only make the facts alleged by the plaintiff suspicious but provide a firm ground to the defendants to controvert and deny the claim of the plaintiff.
9. ' Besides these facts the 'defendants Nos.1 and 2 have denied the execution of the cheques. Mr. Liaquat Merchant, the learned counsel for the plaintiff. Wanted the signature of the cheques to be compared with the -admitted signature of the defendant No,2 who is alleged to have signed all these cheques. I have refrained from comparing them, nor I would like to make any observation on this aspect of the case, as it may materially affect future proceedings. It is, however, sufficient to note that the defendant No,2 has denied his signatures on these cheques and has brought on record material facts to support his contention. One of the material facts is that these cheques have been taken out from a Cheque Book which was issued in the year 1973. A that time the parties were on cordial terms and as stated by the defendants, in the Multan Branch of 'Habib Bank on which the cheques has been drawn, there was a small account of the defendant No,3. This account was operated by the father-in-law of the plaintiff who was also an agent of the defendant No,3. In this regard the defendant have produced the certificate of the bank to show that the cheque book was issued in the year 1973. According to the learned counsel for the defendants it was within the knowledge of the plaintiff that this cheque book was issued in the year 19.73. Such knowledge cannot be presumed merely on facts that the plaintiff and defendants were carrying on business jointly at that time. However, the fact remains that why cheques from cheque book of 1973 will be issued by the defendant No,2 when according to the plaintiff, they had reached an amicabl settlement with the intervention of certain respectable persons. All these facts show that the defendants have strong and arguable case.
10. ' The learned counsel for the plaintiff has relied on Fine Textile Mill's case PLD 1963 SC 163 and Jaffrani's case 1984 SCMR 568 in which principles for granting leave to defend unconditionally or conditionally have been exhaustively disctissed. In view of the principles laid down in these authorities I am of the view that the defendant have made out a strong arguable case. The learned counsel for the plaintiff has fairly conceded that the cheques were not signed by the defendant No,1 and that the cheques have been issued on behalf of the defendant No,3 which was not in any manner involved in the controversy in the suit, therefore, they are entitled to unconditional leave.
11. ' In view of the above reasons by a short order, the defendants Nos.1, 2 and 3 were granted unconditional leave to appear and defend the suit.