MUHAMMAD IBRAHIM BHATTI Versus MUHAMMAD RAFIQVE

This Regular First Appeal is directed against the judgment and decree, dated 25‑2‑1991, by which a learned Additional District Judge at Lahore granted ex parte decree to the plaintiff‑respondent against the defendant‑appellant for the recovery of Rs. 15,000 on the basis of a cheque issued by the latter to the former.

2. The claim of the plaintiff‑respondent for the recovery of the said amount was based on the allegations that he had business dealings with his opponent and on account of the purchase of ceiling and padestal fans from him he had given him a cheque dated 28‑9‑1986 for the said amount but the same was dishonoured by the bank, hence the suit.

3. It appears that the defendant‑appellant had made an application to the trial Court for seeking permission to defend the suit but the same was dismissed, vide order, dated 23‑2‑1991 and later, on the ex parte evidence adduced by the plaintiff‑respondent, his suit for the recovery of money was decreed by the impugned judgment. Feeling aggrieved by it, the defendant appellant came up in appeal to this Court.

4. It is argued by the appellant (whose counsel, according to him, has not turned up on account of his inability to pay him full fee due to poverty,) that he had business dealings with his adversary and on that account a sum of Rs.67,000 was due from him. He submits that to pay up this amount he transferred to this opponent his house worth Rs.80,000 and a sum of Rs.13,000 was, rather, due from him but to digest this amount, the respondent brought a suit for the recovery of Rs. 15,000 on the basis of an old dishonoured cheque which he had cleverly retained at the time of settlement and in this way nothing was due from him.

5. Learned counsel for the plaintiff‑respondent submits that a sum of Rs. 15,000 was still due from the defendant‑appellant for which he had issued him a cheque but it was dishonoured and seeing no alternative, he brought a suit against him for the recovery of its amount.

6. During the course of argument the plaintiff‑respondent has admitted having obtained a house from the defendant‑appellant in order to recover the amount of loan due from him but he insists that a sum of Rs.15,000 was still due from him.

7. My impression is that due to the refusal of the learned trial Judge to allow the defendant‑appellant to defend the suit, the real controversy between the parties did not come before him. When for the payment of the amount due from him the defendant‑appellant sold out his house to the plaintiff‑respondent and the controversy stood apparently settled between the parties, it is not understandable as how a sum of Rs. 15,000 was still due from the former to the latter. Anyhow, the matter needs further consideration.

8. In view of the above, the appeal is accepted, the impugned judgment and decree are set aside and the case is remanded to the trial Court, with the direction that it shall afford the defendant‑appellant an opportunity to defend the suit of his opponent by filing a written statement and, after recording the evidence of the parties, decide the case afresh. Parties are directed to appear before the learned District Judge on 13‑4‑1992.

AA./M‑312/L Case remanded.