Shahid Imran Vs Muhammad Khurshid

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^, JUDGtrDt{T SIIEEf,

PESHAWAR HIGH CO URT .PE SHAWAR

(Judkial DeDarttneftt)

RFA No. o3 -B12o/2s.

Shahid Imran..V s.' Mrtlummad Klurshid'

Date of hearng 14.4.2o.25.

For the appellant. Mr. Sohail Qureshi, Advocate.

For the respondents. Mr. Muhammad Ishaq Khattak, Advocate.

JUDGUEITT

MUHAMMAD TARIO AFRIDI. J.- Through this Regular First n Appeal, the defendant/appellant has challenged the legality and validity of the judgment and decree dated 26.10.2022, passed by the leamed Additional District Judge-II, Karak, whereby the Court dismissed the defendant's application for leave to defend and decreed the plaintifPs suig ordering the defendant to pay Rs. 59,500,000/-( approximately PKR 59'5 million).

2.Brief facts of the case are that plaintiff(hereinaftei to be referred as the respondent). filed a suit against the defendants (hereinafter to be referred as the appellant) for recovery under Order XXXUI C.P.C' on the basis of a negotiable-instrument, alleging that in January 2022,he saw

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an advertisement on OLX for recruitment at "HOPE" an NGO planning to open Karak office. Following the advertisement, the respondent applied for the job and was interviewed by the appellant and defendant Shabir Hussain.

He was asked to bring Rs. 58000,00/- (fifty eight lacs) in cash and was promised a cheque for Rs.5,95,000,00/-' The cheque was supposedly for office set up including computers and furniture, after deducting the initial cash amount. On 4 23.7.2022, the respondent handed over Rs.58 lac in cash to respondent Sabir Hussain in presence of Gulab Rehman and received a cheque No.0891920 dated 23.7.2020 for Rs.5,95,00,000/- drawn on account No.12337900145303, maintained at FIBL Namkana sahib Branch, Sheikhupara, Punjab, which upon presentation, was dishonoured because the amount in cheque was stated differently in figures and words.

3.The petitioner and other defendants were summoned through registered post and publication, but upon their failure to appear, were proceeded against ex-parte on 19.11-2022.

The respondent produced oral and documentary evidence and closed his side. Thereafter, on22.03.2022,the appellant through his attorney Faiz Ullah appeared and filed an application for setting aside the ex-parte proceedings. On 28.4.2022, the trial Court instructed Advocate Abid Awnar

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to produce Shahid Imran (the appetlano who then appeared in person. The application for setting aside ex-parte proceedings was allowed on 07.6.2022. The appellant then submitted an application for leave to defend on 07.07.2022.

The respondent fited an application to strike off the appellant's right of defence citing limitation as the ground.

The trial Court declined leave to defend the suit and decreed the suit of the respondent through the impugned j udgment/order dated 26.10 .2022, hence, the instant appeal.

V 4. Arguments heard and record perused.

5.As per Article 159 of the Limitation Act, 1908, read with Order XXXVII Rules 1 and 2 C.P.C., the period prescribed for submission of an application for leave to defend the suit under summary procedure referred to in section 128(2)(f) or under order XXXVII of the CPC, 1908 is ten days from the date of service of summons. In the present case, the appellant appeared before the trial Court on 22.03.2022, and ex-parte proceedings against him were set aside on 07.06.2022. However, the application for leave to appear and to defend the suit was submitted belatedly on 07 .07.2022, exceeding one month from the date of ex-parte proceedings were set aside without an application for condonation the delay. The scheme of Order XXXVII C.P.C.

is distinct it permits a plaintiffto obtain a quick judgment in cases based on negotiable instruments or written contracts unless the defendant secures leave to defend within the stipulated time. The right to defend is not automatic but conditional on disclosure of a sufficient cause. In absence of timely leave, the allegations in the plaint are deemed admitted, and the plaintiff becomes entitled to a decree.

Reference in this regard can be made to the case titled aa

Vs..

anothe reported tn (7997 MLD 7838/,, wherein it has been held that:

"5. At the outset it may be observed that in a suit based upon negotiable instrument in which summons have been issued in Form No.4 Appendix B, the defendant is not entitled to appear or defend the suit as a matter of course unless he obtains leave from the Court so to appear and defend. In default ofhis obtaining such leave for his appeaxance and defence in pursuance thereofthe allegations in the plaint shall be deemed to be admitted and the plaintiffs shall be entitled to a decree. The advantage in adopting the procedure prescribed by Order C.P.C. is that the defendant is not as a matter ofright entitled to appear or to defend, but ifhe deserves to be heard he must apply to the Court for permission to appear and defend within l0 days of service of summons as envisaged by Article 159 of the Limitation Act. Till such time as leave to defend is granted the defendants cannot even file interlocutory application in order to agitate the point of

n jurisdiction or to question the tansactions between the parties or to challenge validity, and legal effect of the promissory note and crossed cheque issued by them in favour of the plaintiffs.

6.The appellant, despiteappearingbeforethetrial Court, failed to comply with the mandatory period for seeking leave to appear and to defend the suit and offered no legal justification or request for condonation of delay. Therefore, the tial Court was fully justified in striking off his defence and decreeing the suit.

7.For the foregoing reasons, the judgment and decree passed by the leamed trial Court are upheld and the present appeal, being devoid of merit, is dismissed.

tA t4.4.2025 Ihsan.

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