ORDER SHEET
IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
1st Civil Appeal No.S-06 of 2017
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Date |
Order with signature of Judge |
1. For orders katcha peshi
2. For hearing of
CMA No.248/2017
10-11-2017
Mr. Nisar
Ahmed Bhambhro, Advocate for the appellant
Mr. Safdar Ali Bhatti, Advocate for the respondent
.-.-.-. -.-.-.-.-.-.-.-.-
The instant
appeal has been filed against the judgment and decree passed by the Court of learned
Additional District Judge-I, Khairpur in suit
No.27/2016 decreeing the said summary suit under Order 37 Rule 1 CPC filed for
the recovery of sum of Rs.18,53,563/- (rupees eighteen lacs,
fifty three thousands, five hundred and sixty three). Learned counsel for the
appellant has prayed Court to set aside impugned judgment and decree and have
sought the matter to be remanded to the trial Court for deciding on its merit
afresh.
This
appeal is admittedly part of a long legal battle going between six daughters of
Sir John Gasper, for which two succession applications are pending before the
trial Court, and in respect of which number of appeals and FIRs have been filed by these ladies against each
other. The instant controversy was also subject matter of an order passed by
this High Court in Civil Misc. Appeal No.S-06/2014 only on 28.8.2017.
Learned
counsel for the appellant submits that the cheque in question was issued by the
appellant as part of settlement agreement that was to be reached between the
legal heirs which however never sought light of the day, to the extent that the
dispute is still pending before the trial Court, hence said payment was not a
simple arm-length transaction between the parties and the cheque in question
was not issued in consideration of any goods or services provided by the
respondent. He submits that the trial Court failed to comprehend totality of
factual picture. He submitted that there was ample reason for the leave to
defend allowed without calling the appellant to provide security in the equallent sum. Counsel contends that the trial Court failed
to apply its mind to the nature of dispute between the parties and summarily
decided the suit as if it was a normal, routine business transaction. He
however affirmed that his client is willing to provide surety in the equallent amount before the trial Court and requests that the
matter to be decided on merit by the trial Court after considering arguments
and evidence put forward by both the parties. He further submits that stop-payment
instruction was already issued for the cheque in question, which was duly
acknowledged by the corresponding bank, thus the case clearly falls under
Section 122-A of the Negotiable Instrument Act 1881.
Learned
counsel for the respondent denied these assertions and submitted that issuance
of cheque was an independent transaction and it had nothing to do with the
succession battle going on in-between the rival sisters. He submits that the
transaction was covered by the provisions of Negotiable Instruments Act and that
the judgment and decree were rendered strictly in accordance with law.
Looking
at the facts of the matter in a broader spectrum, to me the counsel for the
respondent has failed to satisfy as to the considerations for which the instant
cheque was issued, which leads this Court to a singular belief that it
definitely formed part of the settlement row pending in between the rival
sisters. I am thus inclined to allow this appeal to the extent of calling upon
the appellant to provide surety in the equallent
amount of Rs.18,53,563/- and upon submission of the said surety within thirty
(30) days, the matter is remanded to the trial Court to be decided afresh
within 120 days on its merits after hearing both the parties. The impugned
judgment and decree resultantly are set-aside.
JUDGE
Suleman Khan/PA