' Civil Miscellaneous Application No,3419 of 1997. In this suit for recovery of Rs,9,32,400 filed under the provisions of Order XXXVII, C.P.C. Founded on a cheque issued by defendant No,1 and dated 1-12- 1996 pursuant to a lease agreement dated 27-11-1996 executed by plaintiff in favour of defendant No,1 through defendant No,2, defendant No,1 seeks unconditional leave to appeal and defend the suit in the following circumstances.
2. Defendant No,1 desired a residential Bungalow for accommodating their Finance Executive Mr. Jomy Davies and entered into an agreement of lease dated 27-11-1996 with the plaintiff in respect of bungalow No,34/II-B, 16th Street, Khayaban-e-Mujahid, D.H.A., Phase-V, Karachi on monthly rental of Rs,42,000 with an agreement to pay two years' advanced rent less income tax and issued the aforesaid cheque payment whereof was stopped. In the event of dishonour of the cheque plaintiff filed a suit for recovery on the averments that on receipt of the advance rent she had handed over peaceful physical possession of the bungalow through defendant No,2 to defendant No,1 but as stated above the cheque issued by defendant No,1 was dishonoured, hence this suit.
3. In the accompanying affidavit defendant No,1 has averred that Mr. Jeremy Davies visited the bungalow on or about 20th November, 1996 to 26th November, 1996 and found that certain repairs were absolutely necessary before occupation, therefore, this defendant informed the defendant No,2 to hire the bungalow on rent provided the repairs were effected before the next date of inspection. According to defendant No,1, the bungalow was re-visited on 1st December, 1996 when it was noticed that the works pointed out were not carried out, therefore, defendant No,2 was categorically informed that due to default on the part of the plaintiff in carrying out necessary repairs the lease agreement stood cancelled and that the payment of cheque, shall be stopped. It is further averred that subsequently the premises have been rented out by the plaintiff to someone else with the result that no loss or damage has been caused to her. According to the defendant, the plaintiff through her counsel had issued a legal notice dated 4th December, 1996 to them 'which was promptly replied through letter dated 10-12-1996 but the plaintiff for mala fide reasons did not attach the legal notice and reply therewith the plaint with a view to suppress vital facts.
4. On behalf of the plaintiff a counter-affidavit has been filed controverting various statements of fact including that the bungalow did not require any repairs; that vacant possession was handed over to defendant No,1; that defendant No,2 did not represent the plaintiff and he acted as an agent for defend company and lastly that the reply to legal notice was received after the filing of the suit. Six photographs of various portions of the bungalow have been appended to the counter- affidavit to substantiate the position taken therein. Counter-affidavit is followed by affidavit in rejoinder on behalf of defendant No,1 as well as defendant No,2 supporting the case set up by the defendant and substantiating the grounds taken in the application for leave to defend. According to the affidavit of defendant No,2, the bungalow in question was rented out through him to another person but the said person also terminated the lease agreement as repairs were not conducted to his satisfaction and lastly it has now been rented out through some other agent to a new tenant, who has been occupying the bungalow for the last 8/9 months.
5. Upon hearing learned counsel for parties and examining the relevant data placed on record, I find that though the plaintiff made a mention of legal notice issued to defendant No,1, no mention was made about the reply received from the defendant. In the counter-affidavit it was said that the reply was received after filing of the suit but the accompanying envelope is not produced to substantiate this plea. On the face of its reply letter seems to have been sent by registered A.D. Post and is a dated 10-12-1996 which, in all probability, is expected to have been mailed on due date. As to the cancellation of lease agreement owing to lack of repairs to the bungalow, there is a supporting affidavit of defendant No,2, who acted as an estate agent and middle man between the parties. Prima facie there is no evidence to indicate that the bungalow in question was indeed handed over to defendant No,1 as alleged. The fact that the said bungalow has not been rented out to a new tenant is also a relevant factor to reflect that the plaintiff appeals to have been compensated for the loss if at all any. Without commenting in detail as to the correctness or otherwise of the allegations raised and controverted by the parties suffice to say that defendant No,1 has raised disputed issues of fact which require trial at the hearing of the suit after appropriate evidence is adduced by the parties. In this view of the matter since a plausible defence appears to have been made out, I am inclined to grant leave to defend the suit unconditionally. C.M.A. Is granted. Written statement may be filed in office within three weeks.
Application to defend .