Abdul Sattar Vs Muhamamd Javed

Form No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

CR No. 55386 of 2025

Abdul Sattar vs Muhammad Javed

S.No. of Date of Order with signature of Judge and that of parties or Order/ order/ counsel where necessary Proceeding Proceeding 20.10.2026 M/s. Muhammad Kamran ur Rasheed and Yasir Baig, Advocates for petitioner.

Mr. Arslan Ahmad and Ms. Komal Tariq, Advocates for respondent.

Barrister Hassan Khalid Ranjha, Additional Advocate General, Punjab.

Mr. Qamar Hanif Ramay, Assistant Attorney General for Pakistan.

M/s Muhammad Dilbar Ghouri, Subhan Ali, Mazhar Hussain Tahir, Malik Khalid Tanveer, Abdul Manan Sipra, Rana Athar Raza Khan, Fayyaz Sandhu, Barrister Muhammad Sohail Babar Khan, Barrister Saeed Hussain Nagra, Sh. Faisal Sikandar Iqbal, Muhammad Shahid Malik, Sarmad Ahmad Ghani, Mahar Salman Qutab, Syed Qaiser Gillani, Faisal Anwar Minhas, Ijaz Ahmad, Muhammad Naeem Mazhar, Ch. Imtiazullah Warraich, Ch. Muhammad Naseer, Barrister Rana Khizar Hayat, Shehryar Farhan Beg, Barrister Karim Ullah Sraw, Ms. Maryam Khan Khosa, Ms. Zubera Bashir Chaudhry, Ms. Moniba Nadeem, Muhammad Waleed Waheed Chaudhry, Asif Raza Rasheed, Barrister Shahid Masood Khan, Syed Imran Ehsan, Muhammad Badar Butt, Abdullah Haroon, Muhammad Saeed Bin Noman, Dr. Muhammad Azeem Raja, Syed Ali Allow-u-Din, Muhammad Afzal, Mateen ul Haq Ch., M. Haris Jutt, Shafique Ahmad Bhutta, Zahid Saeed, Omer Riaz Chaudhary, Ms. Musarrat Rehman and Ms. Asifa Ahmad, Advocates

MUZAMIL AKHTAR SHABIR, J. Through this Civil Revision, the petitioner Abdul Sattar (“petitioner”) has called in question the order dated 31.05.2025 passed by Additional District Judge, Wazirabad, who has

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dismissed the application for leave to defend filed by the petitioner in a suit under Order XXXVII of Code of Civil Procedure, 1908 (‘CPC’) for recovery of Rs.65,00,000/- filed by respondent Muhammad Javed (“respondent”) on the basis of a cheque.

2.Learned counsel for the petitioner submits that through application for leave to defend supported by affidavit, liability had been denied and preliminary objection No.5 was raised that the cheque, subject matter of the summary suit, was issued as a guarantee cheque for an altogether different transaction and not against payment of any alleged accrued liability relating to poultry business as claimed by the respondent. The reply of the said application was not filed by the respondent to controvert stance of the petitioner supported by the affidavit of petitioner attached with the application for leave to defend filed by the petitioner, therefore, on the basis of petitioner’s affidavit, leave to defend should have been granted but the trial court has not appreciated the said aspect of the matter while declining relief to the petitioner solely on the ground that issuance of cheque has been admitted by the petitioner, which was not justified and the impugned order is liable to be set aside.

3.On the other hand, learned counsel for the respondent has defended the impugned order by claiming that as issuance of cheque had been admitted by the petitioner, the remaining stance taken by him amounted to illusory defence, which cannot be treated as a plausible defence entitling him for grant of leave to defend, hence his application had rightly been dismissed.

4.The operative part of the impugned order is reproduced below:

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“Though the plaintiff has not submitted the written reply of leave to defend, however, it denudes from the perusal of record that no factual controversy is involved in this case. The defendant has admitted the issuance of cheque as guarantee, so, grant of permission for leave to defend will further linger on the decision of this suit, which is indeed one of summary nature and its expeditious decision is the demand of law. Plaintiff is facing the music of civil trial from long period. Instant application neither discloses any substantial question of law nor facts needing for grant of permission to defend the version of plaintiff. Apparently, defence set up is illusory, so no permission for leave to defend can be granted to the petitioner/defendant. Ergo, for what has been discussed above, instant application for leave to defend filed by defendant stands dismissed.”

5.Perusal of said order shows that court has not given due consideration to the defence raised by petitioner and on the basis of cursory view declared the same to be illusory, whereas in his suit, the respondent had claimed that he was in poultry business and had supplied chicken to the petitioner on 12.01.2023, for which cheque of Rs.65,00,000/- was issued by him, which on presentation in the bank was dishonoured on 13.01.2023. Whereas, in rebuttal through application for leave to defend filed by the petitioner, it was claimed that there was no outstanding liability relating to business of poultry between the parties and cheque had been issued as a guarantee for sale of 11 marlas property to a relative of the respondent, who was partner of the respondent for ensuring that mutation was sanctioned for sale of said property in his favour and on the entry of mutation when the petitioner demanded return of cheque, the respondent with mala fide intention lodged a criminal complaint against him. The said application was supported by an affidavit of the petitioner whereas counsel for the respondent on 19.03.2025 appeared before

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the court and stated that the respondent did not want to file reply to application for leave to defend and the counter affidavit to rebut the claim of the petitioner in his application for leave to defend was also not filed by respondent to challenge the defence raised by the petitioner.

6.It is important to mention here that a defendant in a summary suit for recovery of money filed under the provision so Order XXXVII CPC is required to obtain leave to defend the suit by filing an application in terms of Order XXXVII Rule 3 CPC, which is reproduced below: “Defendant showing defence on merits to have leave to appear. (1) The Court shall, upon application by the defendant, give leave to appear and to defend the suit, upon affidavits which disclose such facts as would make it incumbent on the holder to prove consideration, or such other facts as the Court may deem sufficient to support the application.

(2)Leave to defend may be given unconditionally or subject to such terms as to payment into Court, giving security, framing and recording issues or otherwise as the Court thinks fit.

(3)The provision of section 5 of the Limitation Act, 1908 shall apply to application under sub-rule

7.The perusal of the said Rule makes it clear that application for leave to defend has to disclose facts upon which leave is sought by the defendant to defend the suit filed against him, which application is to be supported by an affidavit. Where the said application raises a substantial question of fact or law that could be treated as a plausible defence to the averments in the plaint and if such facts would make it incumbent on the holder of negotiable instrument, i.e. cheque in the instant case, to prove consideration through evidence, leave to defend has to be allowed. It is important to note here that any substantial

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question of fact or law which needs to be tried or investigated for decision of the case was ordinarily treated as a plausible defence. Reliance in this behalf may be placed on Fine Textile Mills Ltd., Karachi versus Haji Umar (PLD 1963 SC 163), wherein it is laid down as under:

‘In a suit of this nature where the defendant discloses upon his affidavits facts which may constitute a plausible defense or even show that there is some substantial question of fact or law which needs to be tried or investigated into, then he is entitled to leave to defend. What is more is that even if the defense set up be vague or unsatisfactory or there be a doubt as to its genuineness, leave should not be refused altogether but the defendant should be put on terms either to furnish security, or to deposit the amount claimed in Court.’

The same principle of law has been reiterated in Umar Khan versus Haji Musa Jan (2009 SCMR 1101), wherein it has been held as under:

‘It is settled law that the Court would grant leave to defend the suit whether conditional or unconditional; where the petitioner through affidavit with the application for leave to defend would show “plausible” defence or showing some substantial question of fact or law which needs to be tried as laid down in cases Fine Textile Mills Ltd., Karachi v. Haji Umar PLD 1963 SC 163, Mian Rafiq Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd., and another PLD 1996 SC 749, Messrs National Security Insurance Company Limited and others v. Messrs Hoechst Pakistan Limited and others 1992 SCMR 718 and Ch. Maqsood Ahmed v. Khalid Pervaiz 1990 CLC 1536.’

8.In view of the above, it is clear that if the petitioner through his affidavit attached with the application had raised some substantial question of fact or law that was required to be tried or investigated, he should be granted leave to defend. In the present case although the petitioner

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had not denied issuance of the cheque, and ordinarily where issuance of cheque is not denied leave may be refused but this is not an absolute rule of law as the petitioner can still explain the purpose for which the cheque had been issued and the defence taken by him has to be taken as a whole and not piecemeal. It is noted that despite admission of issuance of cheque, petitioner had denied the liability against supply of poultry by the respondent to him by claiming that said cheque had been issued as a guarantee cheque relating to a transaction for sale of property between the petitioner and a relative of the respondent who was also partner of the respondent with intention to ensure that the mutation of the said sale of property measuring 11 Marlas is recorded in the revenue record and it is claimed that when the mutation was entered in the record petitioner asked the relative of the respondent to return the said cheque which he did not do, rather the respondent got an FIR registered against the petitioner with mala fide intention. The said stance of the petitioner was also supported by affidavit submitted by the petitioner along with the application for leave to defend. If the stance taken by the petitioner was established to be correct then it would mean that the respondent had failed to prove consideration against the said cheque. In this view of the matter the respondent was required to either file a counter affidavit along with reply to the application for leave to defend or to cross examine the affidavit submitted by petitioner/defendant in support of his application for leave to defend, which would only be possible if the respondent appears in evidence.

9.Although the learned counsel for the respondent has defended the impugned order but could not explain why reply to the said application along with counter affidavit

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to rebut the stance of the petitioner was not filed in the court. As in the instant case, the respondent had not filed reply to application for leave to defend accompanied by counter affidavit to negate the stance and contentions of the petitioner who has raised defence that the cheque was issued as a guarantee cheque for transfer of property and not against dues relating to poultry business of the respondent, which was not controverted by counter affidavit, hence the same has remained unrebutted, in the said circumstances the parties were required to establish their respective stance in suit and defence through evidence, therefore, leave to defend should have been granted to the petitioner so that he can prove his stance in evidence while giving opportunity to the respondent to cross examine the same and in these circumstances, the defence of the petitioner could not be treated as illusory to dismiss his application for leave to defend summarily. In this regard reliance may be placed on Iyaz-Ul-Haq Chaudhry versus NIB Bank Limited through Authorized Attorney and 4 others (2016 CLD 1741), Malik Muhammad Nawaz versus Mohsin Saleem (2016 MLD 1533), Talib Hussain versus Abdul Shakoor (2012 CLD 98 Lahore = 2012 CLC 69 Lahore), Sh. Muhammad Naeem and 3 others versus Habib Bank Limited, Karachi and 4 others (2003 CLD 606 Lahore) and United Bank Limited versus M/s. Fazaka Industries Limited and others (1987 MLD 49(1) Karachi), wherein it has been held that if counter affidavit is not filed by the plaintiff to the application for leave to defend which is accompanied by an affidavit and it raises a question of fact or law which was a plausible defence, leave to defend should be granted to the defendant. The relevant portion of order passed in

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case of Talib Hussain (Supra) is reproduced below for clarity:

‘In the present case, the appellant/defendant had categorically contended that the promissory note and the cheques were obtained as guarantee due to mutual trust and the same were without consideration. The contents of the petition were verified through an affidavit duly attested by Mian Muhammad Saeed, Advocate and Oath Commissioner, Burewala, District Vehari. No counter-affidavit in this regard was filed alongwith the reply. In these circumstances, the learned trial court should have not declined to grant leave to defend as cogent reasons for allowing the same did exist for the reasons elaborated above.’

10.Moreover, the petitioner during course of arguments has stated that despite the fact that he had raised a plea for which he had made out a case for grant of leave to defend, he is still ready to submit surety bond to show his bona fide.

11.In view of the above, it is held that the trial court while dismissing the application for leave to defend filed by the petitioner has not properly exercised jurisdiction vested in it and in view thereof the impugned order is held to be not sustainable and is set aside with the observation that petitioner is granted leave to defend the suit subject to submission of surety bond equal to the claimed amount to the satisfaction of trial court within 30 days of production of certified copy of this order, where-after the trial court shall proceed with the trial of the case on its own merits in accordance with law.

12.This civil revision is allowed in the aforementioned terms. No order as to costs.

(MUZAMIL AKHTAR SHABIR)

JUDGE

Naveed *

APPROVED FOR REPORTING