' This judgment shall dispose of R.F.As. Nos.119 of 1999 and 120 of 1999 because the parties are the same and the identical question of law and facts are involved in both the cases.
2. This regular first appeal is directed against the judgment and decree dated 2-3-1999 whereby the application for leave to defend in a suit filed by the respondent Jamal Din against the appellant for recovery of suit amount on the basis of cheque under Order XXXVII, C.P.C. Was rejected.
Consequently, the plaintiff suit was decreed. Suit for recovery of Rs.1,50,000 on the basis of cheque issued by the appellant in favour of respondent-defendant on 12-11-1998 and other suit for recovery of, Rs.1 lac on the basis of cheque dated 10-12-1998 were filed by respondents as cheques were dishonoured and were not encashed on their presentation by the respondent-defendant which gave the cause of action to the respondent-defendant to file two different suits for recovery of the above said amount.
3. In pursuance of the notice issued by the Court under Order XXXVII, rule 2, C.P.C. The appellant appeared in Court and filed application for leave to defend on 28-1-1999 alongwith his affidavit.
The fact of issuance of two cheques dated 12-11-1998 (Rs.1,50,000) and dated 10-12-1998 (Rs.1 lac) and their non-encashment has been admitted by the appellant. However, in para. 4 of the application for leave to appear and defend, it was contended that the above mentioned cheques were obtained through fraud and coercion, therefore, the appellant-defendant was not bound to pay the amount. Alongwith the application for leave to defend Suit No.1 of 1999 for recovery of Rs.1 lac the appellant annexed photocopy receipt dated 25-12-1998, in which it has been mentioned that Rs.80,000 was received by the defendant-respondent with balance of Rs.20,000. However, it is important to mention that the fact of payment of Rs.80,000 through receipt dated 25-12-1998 by the appellant to the defendant-respondent was not mentioned in the application for leave to defend. On 2-3-1999, the appellant submitted written arguments in support of the application for leave to defend, wherein the appellant had admitted that he had issued cheque of,50,000 on 20- 11-1998 and thereafter he had paid Rs.50,000 in cash to the defendant - appellant. Further, he stated that he did not sign the same and asked for return of the first cheque dated 20-11-1998. The plaintiff-respondent promised to return the cheque. It was also stated that on extending threats, the appellant-defendant paid Rs.80,000 and demanded return of both the cheques, but the respondent-plaintiffinstead of returning the cheques issued a receipt dated 25-12-1998 according to which the plaintiff-respondent received Rs.80,000 and mentioned Rs.20,000 as balance, therefore, only Rs.20,000 was outstanding against the appellant-defendant. Learned trial Court did not agree with the plea raised in the application for leave to defend regarding fraud and coercion, and held that these pleas are inconsistent inter se. It was further observed that in case there was fraud, there could be no coercion and if it was the later case, there could be no fraud. Further, it was observed that arguments raised by the learned counsel for defendant are alien to the written application altogether, therefore, it was found that there was no good ground for plausible defence to be tried and the application for leave to defend filed by the appellant-defendant was rejected and consequently the suits were decreed on 2-3-1999. The appellant-defendant had challenged both the judgments and decrees dated 2-3-1999 through the present first regular appeals.
4. Learned counsel for the appellant contends that the learned Additional District Judge has not examined the plausible defence taken by the appellant in the written arguments filed by the appellant on 2-3-1999; that alongwith the application for leave to defend dated 28-1-1999 the receipt dated 25-12-1998 showing payment of Rs.80,000 with balance of Rs.20,000 by the appellant to the plaintiff-respondent was annexed but the same has escaped the notice of the learned trial Court and no finding has been recorded on it; further that the suit under Order XXXVII, C.P.C. Can only be tried by the District Judge having the jurisdiction and Additional District Judge who passed the impugned judgment and decree against the appellant-defendant are without jurisdiction and corum non judice.
5. On the other hand, learned counsel for respondent contends that the plea taken in the written arguments dated 2-3-1999 by the appellant-defendant wherein it has been mentioned that Rs.80,000 was paid by the appellant-defendant to the respondent-plaintiff and only Rs.20,000 was payable as balance on the basis of receipt dated 25-12-1998 was not mentioned in the application for leave to defend. In this view of the matter, trial Court has rightly not taken into consideration the plea of payment of Rs.80,000 through receipt dated 25-12-1998; further that the appellant- defendant has admitted the issuance of both the cheques dated 12-11-1998 (Rs.1,50,000) and 10-12- 1998 (Rs.1 lac). He had taken inconsistent plea. There was no plausible defence available to the appellant-defendant, therefore, learned trial Court has rightly rejected the application for leave to defend and awarded the decree in favour of the respondent-plaintiff; that Court of the Additional District Judge had the jurisdiction to try the suit under Order XVII, C.P.C. And the appellant- defendant is estopped to raise this plea before this Court after submitting to the jurisdiction of the learned Additional District Judge by filing the application for leave to defend on 28-1-1999 and by submitting written arguments on 2-3-1999; further that the signature of the appellant-defendant on the receipt dated 25-12-1998 annexed with the plaint of the suit is fabricated and receipt is a forged document. Confronted with this position learned counsel for the appellant-defendant has made offer himself for comparison of the signature of the respondent-plaintiff Haji Jamal Din on the receipt dated 25-12-1998 with his admitted signature on the plaint and the grounds of appeal by this Court in exercise of jurisdiction under Article 84 of Qanoon-e-Shahadat -Order, 1984.
6. I have heard the learned counsel for parties and perused the record with their assistance.
7. Before I proceed to decide the plea raised by the learned counsel for appellant in his application for obtaining leave to defend dated 25-12-1998 and written arguments dated 2-3-1999, I would advert to the question of jurisdiction of the Additional District Judge to decide the case. Section 6(2) of West Pakistan Civil Courts Ordinance (II of 1962) provides that the Additional District Judge shall discharge such functions of the District Judge as the District Judge may assign to him and in the discharge of those functions he shall exercise the same powers as the District Judge. Similarly, under section 15 of the Ordinance ibid the District Judge can by a written order direct that "any civil business cognizable by this Court and the Courts under his control" shall be distributed among such-Courts in such manner as he thinks fit. There is no doubt that to decide the case under Order XXXVII, Code of Civil Procedure is one of the functions of the District Judge within the scope of word, "function" as used in section 6(2) of the Ordinance ibid. In case reported as Abdul Samad v.
Muhammad Ali and another (PLD 1977 Lah. 687) while interpreting the provision of section 6(2) of the West Pakistan Civil Courts Ordinance (II of 1962), it was held that, "section 6(2) of the Ordinance ibid embraces all or sum total of all functions of District Judge, both as Judge' of principal Civil Court of original jurisdiction or as a recipient of other functions additionally". In case of Mst. Sajida Perveen. v. The Additional District Judge, Rawalpindi and 2 others (1991 MLD 745), a question arose that, "in case of a decision or a decree passed by a Family Court presided over by a Civil Judge, appeal lies to the District court which means the principal Civil Court of original civil jurisdiction of a district and in this view of the matter whether the Additional District Judge had the powers to decide the appeal his Lordship Gul Zarin Kiani, J as (Lordship then was) while interpreting the provision of section 6(2) of the West Pakistan Civil Courts Ordinance (II of 1962) held that, "in case of a decision or a decree passed by a Family Court presided over by a Civil Judge, appeallies to the "District Court" which means the principal Civil Court of original civil jurisdiction of a district". District Judge, therefore, can transfer any case pending before him to the Additional District Judge who shall then have the same powers in regard to it as the District Judge. In case reported as Begum Akhtar Akhlaque Hussain and another v. Saghir Ahmad and 12 others (1980 CLC 1892). The Additional District Judge Lahore while accepting the revision against the orders of the trial Court transferred the suit to his own file and decreed without other proceedings. Since the case was not entrusted by the District Judge and on thg mandate of section 6(2) of the West Pakistan Civil Courts Ordinance (II of 1962) it was held that, "Additional District Judge can handle and decide only such cases as are assigned to him by the District Judge". Accepting the revisionpetition by transferring the file on its own without its entrustment by the Iistrict Judge was set aside and declared to be without lawful authority. This being so, I may observe here that the Additional District Judge had the jurisdiction to decide the suit under Order XXXVII, C.P.C. As the same was entrusted to him by the District Judge. Moreover, in pursuance to the notice issued under Order XXXVII, rule 2, C.P.C. By the learned Additional District Judge not only the appellant appeared in Court filed application for leave to defend but also filed written arguments. Till the decree, he did not raise the question of jurisdiction. In this view of the matter also, he is estopped to raise this plea of jurisdiction in this appeal. The objection of the learned counsel for the appellant that there was no jurisdiction available to the Additional District Judge is rejected.
8. Now, I advert to the plea raised by the appellant-defendant regarding non-mentioning of the receipt dated 28-1-1999 by trial Court in the impugned order, through which it has been asserted that amount of Rs.80,000 was paid by the appellant-defendant to the respondent-plaintiff. No reliance could have been placed on this receipt for variety of reasons. Firstly, there is no mention of this receipt in the application for leave to defend submitted by the appellant-defendant before the Court alongwith the affidavit dated 28-1-1999. Secondly, the only point raised in the application for leave to defend was that cheques were obtained by the respondent-plaintiff through fraud and coercion. Learned trial Court B has rightly observed that in case there was fraud, there could be no coercion and if it was the latter case, there could be no fraud. In view of the offer made by the learned counsel for the appellant-defendant for comparison of disputed signature on receipt dated 25-12-1998,. I have myself, in exercise of jurisdiction under Article 84 of Qanoon-e-Shahadat Order, 1984 examined the disputed signature. In case of Messrs Waqas Enterprises and others v.
Allied Bank of Pakistan and 2 others (1499 SCMR 85) it has been observed that, "while exercising the jurisdiction under Article 84 of Qanoon-e-Shahadat Order, 1984 in certaineventualities the Court was enjoined with powers to itself compare signatures alongwith other relevant material to effectively resolve main controversy". After comparison of the signature of the respondent-plaintiff Haji Muhammad Nazir on the receipt dated 25-12-1998 with his admitted signature on the plaint available with the record of the trial Court, it is clear that the receipt is forged and the signature on this receipt are not of the respondent-plaintiff. The execution and issuance of cheques dated 12-11- 1998 (Rs.1,50,000) and 10-12-1998 (Rs.l lac) which were returned by the Bank alongwith a slip showing that the same have been dishonoured. The cheques were not returned by the Bank on the ground that the signature did not tally, therefore, it is not believable that the cheques were not signed by the appellant-defendant. The appellant-defendant has taken altogether the different plea in the written arguments to the plea taken by him in his application for leave to defend dated 28-1-1999. This being so, the learned trial Court has rightly observed that there was not any good ground or plausible defence to be tried in the case. Resultantly, the application for leave to defend of the appellant-defendant has been rejected and the decree for recovery of the said amount through the impugned judgment and decree has been legally and rightly passed in favour of the respondent-plaintiff which needs no interference by this Court. Resultantly, both the regular first appeals fail and are dismissed with costs.