O. 37, R 2

                                      

IN THE COURT OF DISTRICT JUDGE

AT KARACHI SOUTH

              

Civil Suit No.             /2000.

Ali       ……………………………………..…                      Plaintiff

VERSUS

    

Qazi

Through Superintendent Central Prison Karachi

As defendant is confined In FIR # 1/2000,

FIA Corporate Crime Circle,

Karachi ……………………………………………             Defendant

SUIT FOR RECOVERY UNDER ORDER XXXVII

RULE 2,  CODE  OF   CIVIL  PROCEDURE,  1908

The plaintiff most respectfully entreats to submit as under:-

1.    That the plaintiff is a law abiding citizen, by profession is an Advocate of High Courts, enrolled at the Roll of Sindh Bar Council and having office at Karachi for the last many years. That plaintiff knows the defendant for the last few years as he was accountant in Cantt Board Faisal.

2.    That the defendant in the month of April 2000, showed some difficulty and crisis. He requested to plaintiff to give some money as loan to meet the problem. Firstly plaintiff was not inclined to give him money as defendant desired but at his repeated requests on humanitarian grounds, he took mercy upon him and paid him RS. 1,50,000/- through  cross cheque  bearing # 0472359 dated 24-03-2000 of NBP, Karachi. The defendant as security of refund of this amount gave plaintiff a post dated cross Cheque bearing # TH-595541 dated 25.04.2000 in the sum of RS 1,50,000/- and apart from this cheque amount, plaintiff  also  paid/gave defendant  cash/prize bonds  in the sum of RS. 3,50,000/-. The defendant as a token of acknowledgement and guarantee/security of refund of this amount gave/ executed a post dated cross cheques bearing # TH-595542 dated 27.04.2000 in the name of plaintiff in the sum of RS 3, 50,000. (True Photo state copy of both cheques are appended herewith and marked as ‘A’ and ‘B’).

3.    That on due date, plaintiff presented both the cheques in National Bank of Pakistan Karachi but the same were bounced/dishonored. True Photo state copy of both bank clips are appended herewith and marked as ‘C’, ‘D’, ‘E’ and ‘F’).

4.    That on 12-05-2003 at 18.25 hours, plaintiff called upon defendant on telephone and informed him that your both the cheques have been dishonored. The defendant requested the plaintiff that he is in trouble at this time, so wait for few days as he will arrange money and after payment to you, cheques will be taken back.

5.    That the defendant did not turn up in spite of lapse of sufficient days, then plaintiff  made efforts to contact with  defendant on his mobile phone but defendant did not attend the telephone calls. That plaintiff having no alternate sent a legal notice to the defendant demanding his money therein, which was received by defendant but he did not bother to respond, hence present suit for recovery of RS 500,000 along with mark up and cost incurred   therein. (True Photo State Copy of Legal Notice, Receipt of T.C.S are appended herewith and  marked as annexure ‘F’ and; G’).

6.    That the defendant executed aforesaid cheques  in favor of  the plaintiff marked as ‘A’  and B’ after receiving consideration, since the defendant has deliberately failed to make payment in spite of demand of the plaintiff and legal notice , thus  plaintiff is entitled to sue the defendant for recovery of  RS. 5,00,000/-  along with interest and cost of the suit as the defendant deliberately failed to discharge it lawful duty and denied the legitimate right of the plaintiff for which plaintiff has to file this suit for recovery under compulsion.

7.    That the cause of action accrued to the plaintiff against the defendant firstly  on 24-03.2003 and 26.03.2003, when cheques were executed in the office of plaintiff within the local limits of Police Station Preedy and on 26 .04.2003 and on 29.04.2003 when both cheques were dishonored in the National Bank of Pakistan City courts Branch Karachi and subsequently when defendant failed to make payment in spite of telephone call, service of legal notice and the same remained to continue day to day till the filling of this suit within the local limits of Police Satiation Preedy as cheques were executed in the office of plaintiff and cheques were dishonored in National Bank of Pakistan City courts Branch   which is within the territorial jurisdiction of this Honorable court.

8.    That the maximum court fee of RS: 13,275- has been affixed.

P R A Y E R

The plaintiff there fore prays for judgment and decree in his favor and against the defendant as under:-

a)     To direct the defendant to pay RS: 500,000/-(Five Lakhs) to the plaintiff along with interest at Bank rate from the date of institution of this suit till its realization.

b)    Maximum cost of the suit be awarded.

c)    Any other equitable relief (s), as this honorable court may deem fit  and proper under the circumstances of this suit.

Karachi                                                                                  Plaintiff

Dated: 06.09.2000

AMENDED TITLE

APPLICATION UNDER SECTION 151 R/W

153 CODE  OF   CIVIL  PROCEDURE,  1908

It is respectfully submitted that this Honorable Court may be pleased to allow  amendment in  the address of   defendant as in the  title of plaint  defendant  due to bonafide mistake/error  was shown to be in the custody of  Superintendent of  Central Prison Karachi instead of District Jail Malir.

District  Prison Malir instead of

Central Prison Karachi

Karachi.

Dated: 04.11.2000.                                                  Advocate for the plaintiff

COUNTER AFFIDAVIT TO APPLICATION  FILED BY DEFENDANT  UNDER ORDER 37 RULE 3 READ WITH SECTION 151  CODE OF CIVIL PROCEDURE

I, Ali, do hereby state on oath as under:-

1.            That I am plaintiff in the above matter and am fully conversant with the facts of this case and able to depose the same.

2.            That I have  read the application filed by defendant for leave to defend and its accompanying affidavit, deny the same being false, baseless and submit its reply in detail as under,  to which I  verily believe to be true and correct to the best of my knowledge, information and belief.

3.            That averments of paragraph # 3  that cheque bearing # 0472359 dated 24-03-2003 which was issued by me in the name of defendant and was encahsed by defendant has not been denied.

4.            That the fact that suit amount was demanded by me from the defendant through legal notice has not been denied.

5.            That the fact according to defendant that the cheques were obtained through fraud is obviously proved false as from the date of issuance/execution of cheques neither the payment of cheque was stopped nor any other action/step was taken even till the date of filing of this suit, this shows that plea of the defendant proves false.

6.            That contention of the defendant  that cheques were issued under duress of F.I.A. authorities prima facie proves false as cheques were executed by defendant on 25-04-2000 and 27-04-2000 and at that time any sought of inquiry/investigation was not pending with the FIA and there is no question at all for making such pressure as from the perusal of opening paragraph of FIR # 1/2000 of FIA, CCC Karachi, it is disclosed that department sent his first complaint on 11-04-2003 that is much before execution of both cheques, hence there is no concern of FIA as at the time of execution of cheques there was no case against the defendant , hence no question arises to exclude his name from the case. (Photo state copy of FIR is appended herewith).

7.            That I emphatically deny the allegations of defendant that I have influence upon the officials of the department and I made any promise to exclude his name as is proved from above facts that at the time of execution of both cheques by defendant in my name there was no case with the FIA against the defendant.

8.            That It is matter of fact that I executed a cheque # 0472359 dated 24-03-2000 in the sum of RS. 150000/- and exactly post dated cheque of one month for the same amount was executed by defendant in my name and an other RS. 3,50,000/- was paid by me to defendant through cash/prize bonds and defendant  for the same amount executed a cheque in my name.

9.            That defendant has not denied the facts mentioned in paragraph # 5 and 6 of the plaint.

10.         That I re-iterate the contents of plaint and do not repeat the same in order to avoid duplication and this is not material that I have mentioned in paragraph # 2 that defendant showed difficulty in the month of April and payment was made in the month of March. This is mere typing mistake and fact remained unchallenged that defendant executed both cheques in consideration of RS.500000/- as discussed in the plaint.

11.         That the defendant has absolutely failed to make out a case for leave to defend the suit as execution of both the cheques has not been denied and plea of the defendant in view of the above facts have been proved false.

     

12.         That I shall be seriously prejudiced and suffer an irreparable loss until application filed by defendant for leave to defend is  dismissed as the same is without merit and misconceived.

13.         That whatever stated true and correct to the best of my knowledge, information and belief.

           

            Karachi                                                                                  Deponent

Dated: 17-01-2000