ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Ist Appeal No.6 of 2003
Date Order with signature of Judge
For regular hearing.
26.2.2008.
Mr. Muhammad Yasin Azad, for the appellants.
Mr. Ali Gohar Masroof, for the respondents.
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KHAWAJA NAVEED AHMED, J., This Appeal has been filed by the appellants against the impugned order of learned IIIrd Addl. District Judge, Karachi (West), passed in Civil Suit No.13/2002, which was filed under Order XXXVII, Rules 1 & 2, CPC, by the plaintiffs through their attorney Muhammad Salman against the defendants, named in the suit.
2. Brief facts of the case, as mentioned in the Plaint, are that respondents Nos.1 to 7 alongwith their associates had formed a fake company to deceive the people on the premise of giving them high rate of profit on the investment made by the people. The plaintiffs to the suit were persuaded and they had invested Rs.2,200,000/- with the respondents against the security of post-dated cheques of Rs.2,200,000/-. Subsequently, the company failed to give profits as well as return the principal amount to the investors and as such the appellants have presented the cheques in bank for encashment, which were dishonoured by the bank and as such the summary suit under Order XXXVII, Rules 1&2, CPC, was filed in the District Court, which was transferred to the learned IIIrd Addl. District Judge, Karachi (West) for disposal. The defendants had filed the Application for Leave to Defend which was dismissed by the trial Court and thereafter trial Court proceeded with the matter. The trial Court while deciding the case had framed the following issues:-
(i) Whether the suit is maintainable under the law?
(ii) To what relief the plaintiffs are entitled?
(iii) What should the decree be?
3. The trial Court had decided Issues Nos.1 and 2 in negative and had finally dismissed the suit. While dismissing the suit the trial Court has given its following findings:-
"Issue No.1. The suit under Order 37 Rule 1 and 2 CPC, is a simple suit for recovery of money rests upon negotiable instruments, wherein at least three particulars are necessary i.e. 1) Drawer, 2) Payee and 3) Acceptance. As per definition of cheque given in Section 6 of Negotiable Instrument Act as under:-
"Specified banker and not expressed to be payable otherwise then on demand."
The plaintiff alongwith exparte proof had not filed original cheques in question drawn on Emirates Bank International Karachi Branch mentioning name of payee as "Cash" bearing signature of one Rizwana on behalf of some agency. However original cheques were filed later on with statement. There is absolutely no endorsement by said payee (Cash) in favour of any of plaintiffs to constitute that they all are payees, thus one party necessary to answer the definition of negotiable instrument is missing original cheques are filed verified but no such endorsement as there could be name given (cash) is the fictitious payee in capable of any endorsement. In view of above reasons, present suit is not maintainable, issue replied accordingly.
Issue No.2. In the light of above discussion and cited authority it is not disputed here that plaintiffs themselves had not claimed against defendants Nos.8 and 9 while there is no scope of disposing of mortgage property under summary chapter i.e. Under Order 37 Rule 1 and 2 which is subject matter of present suit, therefore, the plaintiffs are not entitled to any relief."
4. I have heard learned counsel for the appellants, learned counsel for the respondents and with their assistance have gone through the material available on the record.
5. Learned counsel for the appellants has stated that once the Application for Leave to Defend is dismissed thereafter it was necessary for the Court to decree the suit in favour of the plaintiff without asking for the affidavit-in-ex-parte proof. In support of this contention, he has relied upon the following case law:-
(i) BAHRIA FOUNDATION v. ABDUL ALEEM BUTT (PLD 2006 Karachi 545);
(ii) ALI KHAN & CO. v. ALLIED BANK OF PAKISTAN LTD. (PLD 1995 SC 362);
(iii) NAEEM IQBAL v. ZARINA (1996 SCMR 1530); and
(iv) MUHAMMAD SIDDIQUE v. MUHAMMAD SARWAR (PLD 2005 SC 322).
6. Learned counsel for the respondents has stated that the respondents do not owe any money to the appellants. He states that Applications for Leave to Defend were not filed by the respondents and the advocates shown in those applications were never engaged by them. He has further stated that the cheques, which are the subject matter of the present proceedings, have been issued by Asmat Elahi, who was not authorized to issue the cheques by the company. He has further argued that if it was a partnership firm then the suit is barred as the partnership is not a registered firm. He has further argued that the cheques, which have been placed in this case, are not in the names of the plaintiffs and these are cash cheques and as such the plaintiffs in the suit are not entitled to recover this amount through process of Court.
7. This matter was initiated in original jurisdiction in the year 2002. The impugned order was passed by the trial Court on 28.2.2003. During all this time no such plea has been raised by the defendants either in the trial Court or in the appellate Court. It is only for the first time at the arguments stage of this appeal in the year 2008 this plea has been taken i.e. after six years for initiation of proceedings.
8. For summary suit the Courts do not go into much details. The basic proof in the hands of the plaintiffs is always a cheque or a negotiable instrument. Burden is always on the person, who has issued the cheques or signed the negotiable instrument to show as to how these cheques came in the hands of the plaintiff. If there is plea, which has been taken in number of cases, that cheques have been stolen by some one or cheque book has been misplaced then such police report should be made available in the Court, which should also be very timely. In the present case the admitted position is that cheques are in the hands of the plaintiffs and the defendants are not able to show as to how the cheques came in the hands of the plaintiffs. They have not taken the plea that cheques were stolen or cheque book was misplaced. The only plea which has been taken is that Ms. Rizwana, was not authorized to sign the cheques. The bank has not made any such endorsement on the cheques when the cheques were presented to the bank. On the contrary, the cheques were dishonoured for want of funds. While I was dictating this order in open Court, at this stage, learned counsel for the respondents Mr. Ali Gohar Masroof has added a new plea that the cheques were obtained from Ms. Rizwana by the plaintiffs under coercion as at that time they had put the father of Ms. Rizwana in police custody in criminal case, lodged by the plaintiffs against the father of Ms. Rizwana. The name of the father of Ms. Rizwana is Abdul Ghani, who according to learned counsel for the respondents, was put in police custody and on the premise of getting him released from police custody these cheques were obtained from her by the plaintiffs. Again this is a belated plea and is not supported by the pleadings or any other document. No suit for cancellation of cheques, obtained in coercion, has been filed by the defendants/respondents during last six years. One can call it negligence on the part of the defendants/respondents. However, in legal proceedings the law does not help the negligent person or the persons, who are sleeping over their rights or not seeking the relief, which they are entitled to from the Court within the prescribed limits of law and within time fixed by law of limitation.
9. In the present case the defence plea taken by learned advocate at this stage is again an admission of issuance of cheques by Ms. Rizwana. It has been stated at Bar that Rizwana has signed the cheques under coercion but coercion has not been proved or demonstrated during proceedings in trial Court.
10. From the foregoing it is proved that the cheques were issued by the defendants and have been dishonoured on presentation by the bank, I, therefore, set aside the impugned judgment dated 28.2.2003 of the learned IIIrd Addl. District Judge, Karachi (West) and allow the IInd Appeal No.6/2003 as prayed. Consequently, the summary suit of the plaintiff is decreed. Parties to bear their own cost.
Judge