2013 M L D 1401


2013 M L D 1401

[Sindh]

Before Farooq Ali Channa, J

YAHYA---Applicant

Versus

AFTAB NATHANI and another---Respondents

Revision Application No.88 of 2006, decided on 2nd April, 2013.

(a) Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.2, 3 & 4 & S.12(2)---Suit for recovery of amount based on dishonoured cheque---Procedure---Suit was decreed in favour of plaintiff without deciding mandatory question of jurisdiction---Trial Court relied upon the un-rebutted, un-challenged affidavit in evidence filed by the plaintiff---Application under S.12(2), C.P.C. was dismissed---Effect-Trial Court had not examined the cheques properly to ascertain the maintainability of summary suit and jurisdiction of the Trial Court, before the judgment was passed, which was obligatory for Trial Court to decide even though such question was not raised by the party to the suit---Case was remanded to Trial Court for deciding application under S.12(2), C.P.C. afresh after framing the issues regarding the maintainability of application under S.12(2), C.P.C., jurisdiction of Trial Court entertaining the summary suit on the basis of dishonoured cheque allegedly not issued/signed by the applicant, fraud and misrepresentation etc.

            Izhar Alam Farooqui Advocate v. Shaikh Abdul Sattar Lasi and others 2008 SCMR 240 rel.

(b) Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.2, 3 & 4 & S.12(2)---Suit for recovery of amount on the basis of dishonoured cheque---Suit decreed in favour of plaintiff---Application under S.12(2), C.P.C. by defendant was dismissed without framing issues---Effect---Court was not obliged to frame issues and record evidence in each case, however, framing of issues depended on the circumstances of each case and  nature of alleged fraud in the decree so obtained---Applicant had raised substantial questions regarding the jurisdiction of Trial Court, maintainability of summary suit on the basis of dishonoured cheques, fraud and misrepresentation by concealing the material facts, which required a detailed inquiry after framing issues---Case was remanded to Trial Court for deciding appli-cation under S.12(2), C.P.C. afresh after framing issues.

            2006 SCMR 531 distinguished.

            Abdul Wajid Wyne for Applicant.

            Abdul Latif A. Shakoor for Respondents.

            Date of hearing: 2nd April, 2013.

JUDGMENT

            FAROOQ ALI CHANNA, J.---The applicant through the instant civil revision application has called in question the judgment and decree dated 16-4-2005, passed by learned District Judge, Karachi (South) (referred to hereinafter as trial court) in Suit No.10 of 2005 (Aftab Nathani v.  Yahya) decreeing the suit of the respondent, so also order dated 25-5-2006 dismissing the application under section 12(2), C.P.C. read with section 151, C.P.C. filed by the applicant.

2.         Concisely the facts of the case are that the respondent filed a summary suit under Order XXXVII C.P.C. against the applicant for recovery of Rs.11,61,750. As per averments of plaint the respondent and the applicant were carrying the business of milk powder, the applicant purchased milk powder from the respondent and issued seven (7) cheques amounting to Rs.11,61,750 in favour of the respondent, which on presentation were dishonoured and returned to the respondent with memo containing reasons as "NOT ARRANGED FOR" and "FUNDS INSUFFICIENT", the respondent thereafter approached the applicant for payment, but all efforts were inefficacious, hence the respondent filed summary suit on the basis of said dishonoured cheques.

3.         The applicant in pursuance of notice made appearance before  the  trial  court  through  his  advocate,  but  did  not  file  application  for  leave to defend, hence the trial Court in term of Order XXXVII, Rule 2,  C.P.C.  decreed  the  suit.  The  applicant  filed  application  under  section  12(2) C.P.C.,  which  was  dismissed  vide order  dated  25-5-2006.

4.         Learned counsel for the applicant has pressed the instant civil revision application on the sole ground that the trial Court has passed the judgment and decree without jurisdiction, the alleged dishonoured cheques were issued by one Mohammad Farhan, as such the trial court had no jurisdiction to entertain the summary suit against the applicant on the basis of said cheques. The respondent by concealing the above fact has obtained the decree by fraud and misrepresentation, such allegations could be resolved properly only after framing issues and allowing the parties to lead evidence but the trial court has dismissed the application under section 12(2), C.P.C. summarily such order has no legal sanctity and liable to be set aside. Learned Counsel has requested that matter  may be remanded to trial Court for deciding the application under  section 12(2), C.P.C. afresh after framing proper issues.

5.         Conversely, learned counsel for the respondent has contended that the applicant was served properly, he appeared before the trial court, but did not file application under Order XXXVII, Rule 3, C.P.C. challenging the jurisdiction of trial Court, hence at this stage he cannot be allowed to raise such plea in application under section 12(2) C.P.C., which provision is applicable only, if the judgment and decree is obtained by fraud, misrepresentation or want of jurisdiction. Learned Counsel has further contended that the trial Court was competent to decide the application under section 12(2), C.P.C. without framing the issues as such the impugned order dated 25-5-2006 does not suffer from any legal infirmity. Learned Counsel has relied upon a case reported as Waraich Zarai Corporation v. FMC United (Pvt.) Ltd. (2006 SCMR 531).

6.         The averments of plaint reveal that the respondent has not disclosed the name of Muhammad Farhan as signatory of dishonoured cheques, nor made him party in the suit. Admittedly, the dishonoured cheques were in respect of Account No. 0231013, per memo issued by the concerned bank regarding the dishonored cheques, the said account was operated by Mohammad Farhan.

7.         The trial Court in the impugned judgment dated 16-4-2005 has relied upon the affidavit-in-evidence filed by the respondent wherein the averments of the plaint were reiterated and has observed that the contentions raised by the respondent have gone unrebutted and unchallenged. However the trial Court has not examined the cheques properly to ascertain the maintainability of summary suit under Order No. XXXVII, C.P.C. and jurisdiction of the trial Court, before the judgment was passed, which was obligatory for trial Court to decide the question of jurisdiction at first instance even though such question was not raised by party to the suit. Reliance is placed on a case reported as Izhar Alam Farooqui Advocate v. Shaikh Abdul Sattar Lasi and others 2008 SCMR 240). The Trial Court vide order dated 25-5-2006 while dismissing the application under section 12(2), C.P.C. has observed that the said application was filed with irrelevant provisions of law ignoring Rule 4 of Order XXXVII C.P.C. and that there was no fraud on the part of Court. The above observation of trial Court indeed required a detailed enquiry to resolve the said controversies, the proper course of action had to frame such issues and after recording evidence if desired by the parties, the application under section 12(2), C.P.C. had to be decided. In a case reported as 2006 SCMR 531 (Supra) although the Honourable Supreme Court has observed that it was not obligatory for Court to frame issues and record evidence in each case, however, framing of issues depends on the circumstances of each case, nature of alleged fraud in the decree so obtained. In the instant matter the applicant has raised substantial questions regarding the jurisdiction of trial Court, maintainability of summary suit on the basis of dishonoured cheques, fraud and misrepresentation by concealing the material facts, which, as observed above, requires a detailed inquiry after framing of issues. I therefore set aside the order dated 25-5-2006 and remand the case to trial Court for deciding the application under section 12(2), C.P.C. afresh after framing appropriate issues regarding the maintainability of application under section 12(2) C.P.C, jurisdiction of trial court entertaining the summary suit on the basis of dishonoured cheques allegedly not issued/signed by the applicant, fraud and misrepresentation by concealing certain facts as alleged by applicant, affording an opportunity to both the parties to lead their evidence.

            The Civil Revision is disposed of in the above terms.

JJK/Y-9/K                                                                                           Case remanded.


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