' The respondent/plaintiff, namely, Sabir Hussain filed suit for recovery of Rs,1,50,000 under Order 37 of C.P.C. Summonses in the prescribed form, i,e, Form IV Appendix "B" were issued against the appellant/defendant. He not only intentionally avoided the service but also misbehaved with the Court official. His service was, however, affected through S.H.O. On which he came to the Court and tiled application for leave to defend the suit wherein he denied to have entered in any business deal with the respondent/plaintiff. After hearing the parties the learned District Judge, Abbottabad rejected the application of appellant/defendant for leave to defend the suit and passed a decree for recovery of. Rs, 1,35,000 as principal amount plus Rs,45,000 as profit on 27-1-1999. The appellant has now assailed the order/decree dated 27-1-1999 through the appeal in hand.
2. Mr, Haji Ghulam Basit, Advocate, learned counsel representing the appellant argued that the learned District Judge, Abbottabad was more influenced by emotions than reasoning, inasmuch as he presumed certain facts which could have their roots in the evidence if allowed to be produced.
He further argued that the appellant had misplaced his cheque book and this fact was brought to the notice of Bank Authorities. That the cheque mentioned in the impugned order is forged bearing forged signatures of the appellant, hence the same carried no sanctity. Regarding partnership deed allegedly executed on 9-6-1997, the learned counsel stated at bar that the appellant had not executed the said partnership deed. He said that the learned District Judge in order to ascertain and verify as to whether the cheque allegedly issued by the appellant was forged or not and that the appellant had executed the alleged partnership deed dated 9-6-1997 should have allowed leave to the appellant enabling him to produce evidence in support of his pleas. The appellant had raised plausible defence duly supported by affidavit but the learned District Judge ignored the defence of the appellant. He placed reliance on Messrs Platinum Insurance Company v. Messrs Highways Bridge Contractor International (Pvt.) Ltd. And another 1997 MLD 2394 and United Sugar Mills Ltd. v National Development Finance Corporation and 5 others 1997 MLD 3122.
3. Mr. Masoodur Rehman Awan, Advocate, the learned counsel representing respondent while controverting the arguments of the learned counsel for the appellant argued that through cross- cheque No,1321336, dated 9-6-1997 of Account No,PLSA-10 drawn on Habib Bank Ltd. Link Road Branch, Abbottabad, Sabir Hussain respondent/plaintiff advanced Rs,1,35,000 to Raja Saeed Ahmad, the appellant. This amount was paid to the appellant for some business deal between the parties. An agreement was also executed by and between the parties on 9-6-1997 whereby the appellant undertook to pay a sum of Rs,15,000 to the respondent/plaintiff as monthly profit. A sum of Rs,15,000 was deducted as profit from the appellant at the time of entering into business deal and the remaining amount of Rs,1,35,000 was paid to him through abovementioned cheque. The appellant as per agreement failed to pay any amount to the respondent/plaintiff, hence after lapse of 4 months, the respondent/plaintiff demanded his money back, on which the appellant issued cheque No,46861227 of Current Account No,1932 of the appellant. This cheque was given to him on 9-10-1997 by the appellant. On presentation, the said cheque was not honoured. The learned counsel further argued that the defence taken by the appellant that neither the agreement, dated 9-7-1997 was executed by and between the parties nor the appellant had issued cheque No,4686 1227 to the respondent/plaintiff was vague and was not plausible. He said that the mere denial is not sufficient. He placed reliance on National Bank of Pakistan v.
Muhammad Ashraf Sanik and another PLD 1987 Lah. 17 and Haji All Khan & Company and 8 others v.
Allied Bank of Pakistan, Abbottabad PLD 1995 SC 362.
4. I have heard the learned counsel for the parties and perused the record.
5. The only defence taken in the application for the grant of leave to defend the suit is that the partnership agreement was forged and fictitious and there was no business relationship between the parties. The receipt of amount of Rs,1,35,000 through Cheque No,1321336, dated 9-6-1997 was not denied by , the appellant/defendant. Similarly, the issuance of Cheque No,46861227 pertaining to Current Account No,1932, dated 9-10-1997 drawn on Allied Bank of Pakistan Ltd. Main Branch, Abbottabad was also not denied on oath in the said application, therefore, these two cheques are very documents on the basis of which suit was filed and the plea raised in defence to this effect is of no substance.
6. Likewise I am not impressed by the submission that the appellant has not executed the agreement, dated 9-6-1997. If the appellant has not executed the said agreement then why he issued Cheque No,46861227 on 9-10-1997 to the respondent/plaintiff. The appellant/defendant did not deny the fact of issuance of cheque to the respondent/plaintiff. The respondent/plaintiff on the other hand, not only in his plaint which has been duly verified on oath stated that the appellant/respondent had issued him Cheque No,46861227 drawn on Allied Bank of Pakistan for re- payment of amount taken by him for investment in the business but in reply to application for grant of leave, which too, was duly supported by affidavit, he reiterated his stand that the amount given to the appellant for business was on demand of the respondent/plaintiff intended to be repaid through the abovementioned cheque which could not be honoured. It is an established principle of law that holder of a cheque in such case is not liable to prove consideration thereof and mere denial of consideration by the drawer does not warrant the grant of leave to defend the suit. Reliance is placed on Hamidullah Khan v. Muhammad Nawaz Qasoori PLD 1982 Lah.
233.
7. The appellant/defendant in his application for leave to defend the suit had made vague and general averments, hence the learned District Judge rightly found that the appellant failed to make out a case for leave to defend the suit. Reliance is placed on Haji Ali Khan & Company v. Messrs Allied Bank of Pakistan Ltd. PLD 1995 SC 362.
8. Grant of leave to defend a suit filed under Order XXXVII, C.P.C. Is not a matter of course or right. In order to be legible for this benefit, the defendant is liable to show such facts which may warrant the proving of the consideration by the plaintiff or disclose a plausible defence which may give rise to triable issues. This necessarily implies that granting of permission to defend the suit or refusal thereof shall be dependent on the attending circumstances of each case and as such no hard and fast rule can be laid for the purpose. Leave shall be refused if no defence worth the name is made out on facts or in law in the application for leave to defend the suit. Leave shall also be refused if the defence disclosed on affidavits is sham or clourable on illusory/imaginary and may not give rise to triable issues. In the case in hand the appellant has neither been able to put forward any defence nor he has been able to raise any triable issues in his application for grant of leave to defend the suit. The learned District Judge, Abbottabad has rightly rejected his application for grant of leave to defend the suit and as such in accordance with law passed decree for recovery of Rs,1,35,000 as principal amount plus Rs,45,000 as profit agreed upon between the parties vide agreement, dated 9-6-1997 with costs. I, therefore, see no illegality in the impugned judgment/order, dated 27-1-1999. The appeal in hand is, therefore, dismissed with no order as to costs. Announced.