Khawaja Fayyaz Ahmed VS Nizam-ud-Din etc

ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

R.F.A.No.94 of 2013 Khawaja Fayaz Ahmed Versus Nizam ud Din (late) through his legal heirs S. No. of order Date of order/ Order with signature of Judge and that of parties or counsel / proceedings Proceedings where necessary. 08.03.2021 Mr. Munir Bashir Ansari, Advocate for the appellant, Malik Waqar Mahmood Awan, Advocate for the respondents.

Through the instant regular first appeal, the appellant, Khawaja Fayaz Ahmed, impugns the order dated 22.04.2013 passed by the Court of the learned Additional District Judge, Islamabad rejecting the plaint in his suit for the recovery of Rs.3,80,000/- filed under Order XXXVII of the Code of Civil Procedure, 1908 (“C.P.C.”) by allowing the respondents’ application under Order VII, Rule 11

C.P.C.

2.The respondents’ predecessor, namely Nizam ud Din (deceased) is said to have issued cheque No.SB-5067353 dated 26.09.2004 for an amount of Rs.1,90,000/- drawn on Habib Bank Ltd., Banni Chowk Branch, Rawalpindi in favour of the appellant. The said cheque was dishonoured on 07.10.2004 due to insufficient funds. On 22.03.2006, the appellant instituted a suit under Order XXXVII C.P.C. for recovery of Rs.3,80,000/- against the legal heirs of Nizam ud Din before the Court of the learned Additional District Judge, Islamabad. The said suit was decreed ex-parte for an amount of Rs.1,90,000/- on 09.07.2007. The ex- parte judgment and decree was set-aside by the learned Trial Court vide order dated 31.01.2013. Thereafter, the respondents filed an application for leave to defend as well as an application under Order VII, Rule 11 C.P.C. seeking the rejection of

the plaint in the said suit. In both these applications, it was pleaded that the respondents’ predecessor had died, and that a copy of his death certificate was annexed with the said applications. A copy of Nizam ud Din’s death certificate shows that he had died on 18.01.2004. The appellant, in his reply to the application for leave to defend, did not controvert or deny the respondents’ stance that Nizam ud Din had died on 18.01.2004.

3.The learned Trial Court, vide order dated 22.04.2013, rejected the plaint on three grounds i.e., (i) that Nizam ud Din had died eight months prior to the accrual of the cause of action; (ii) that there was nothing on the record to show that an agreement for investing Rs.1,90,000/- had been entered into between the appellant and Nizam ud Din; and (iii) that the Trial Court had no territorial jurisdiction to adjudicate upon the matter since the cheque in question pertained to Habib Bank Limited’s Branch in Rawalpindi.

4.Learned counsel for the appellant submitted that the learned Trial Court at Islamabad did have the jurisdiction to adjudicate upon the suit since the cheque in question was handed over to the appellant at Islamabad; that the appellant had not filed a suit against a dead man but against Nizam ud Din’s legal heirs; that the learned Trial Court could not place reliance on a photocopy of a death certificate filed along with the respondents’ applications for leave to defend and rejection of plaint; and that Nizam ud Din had issued a post- dated cheque to the appellant prior to his death. Learned counsel for the appellant prayed for the appeal to be allowed and for the matter to be remanded to the learned Trial Court with the direction to decide the appellant’s suit on merits.

5.On the other hand, learned counsel for the respondents submitted that the appellant could not have instituted a suit against Nizam ud Din through his legal heirs / respondents; that the cheque in question was not given to the appellant at Islamabad; that the appellant was Nizam ud Din’s servant and had stolen the cheque in question; that since Nizam ud Din had died on 18.01.2004, the question of him issuing a cheque on 26.09.2004 or August 2004 did not arise; and that the impugned order and decree did not suffer from any legal infirmity. Learned counsel for the respondents prayed for the appeal to be dismissed.

6.We have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance.

7.As mentioned above, the respondents in their applications for leave to defend and rejection of plaint had pleaded that Nizam ud Din had died. Nizam ud Din’s death certificate annexed with the said application clearly showed that he died on 18.01.2004. The appellant, in his reply to the said application for leave to defend, did not deny the said stance taken by the respondents. Having not done so, it does not lie in the appellant’s mouth to say at the appellate stage that Nizam ud Din had not died on 18.01.2004.

8.In paragraph 2 of this appeal, it has been pleaded that “in the month of August 2004, the appellant needed his investment back and requested the respondent No.1 for its return but in order to accommodate the respondent No.1 to arrange the payment, he accepted a cheque No.5067353 amounting to Rs.190,000/- dated 25.09.2004 issued by the respondent No.1 drawn

on Habib Bank Ltd., Banni Chowk Branch, Rawalpindi ....” Respondent No.1 in this appeal is Nizam ud Din. Since Nizam ud Din had died on 18.01.2004, the question of him having issued the said cheque in August 2004 did not arise.

9.In view of the above, the instant appeal, being bereft of merits, is dismissed with no order as to costs.

(LUBNA SALEEM PERVEZ) (MIANGUL HASSAN AURANGZEB)

JUDGE JUDGE

Sultan*