KHURRAM MUGHAL vs Mrs — 2023 CLD 905 KARACHI-HIGH-COURT-SINDH

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KHURRAM MUGHAL VS Mrs. NAUREEN MUGHAL S. 118---Civil Procedure Code (V of 1908), O. XXXVII, Rr. 1 & 2---Suit for recovery of money---Leave to defend the suit, grant of---Negotiable instrument---Presumption---Pleading of another suit---Dishonored bank cheque---Parties were ex-husband and wife and suit was filed by respondent/plaintiff for recovery of money on the basis of dishonored Bank cheques---Trial Court relied upon written statement of appellant/defendant (husband) filed in another suit filed by respondent/plaintiff (wife) against her previous father-in-law---Trial Court declined to grant leave to defend and suit was decreed in favour of respondent/plaintiff---Validity---Presumption under S. 118 of Negotiable Instruments Act, 1881 was attached to negotiable instrument and burden was upon the person denying the same to prove to the contrary---Such presumption was rebuttable by evidence---Parties were spouse at the relevant time, so there could be probability of stance taken by husband---Without providing opportunity to appellant/ defendant to prove his stance through leading evidence his stance could not be discarded straight away on the basis of presumption that the version of appellant/defendant would be wrong or erroneous---Respondent/plaintiff denied claim of appellant/defendant through her counter affidavit but it was difficult at such stage to decide such dispute in absence of evidence of the parties---Trial Court denied leave to defend application of appellant/defendant on the premise of relying on contents of written statement of appellant/defendant allegedly filed by him in another suit, instituted by respondent/plaintiff against her former father-in-law---Trial Court while dismissing application to defend the suit filed by appellant/defendant, did not consider legal status of the pleadings of another suit---When no evidence is recorded, then contents of written statement could not be treated as proved and believable, as true and correct---Contents of pleadings of any other suit could not be considered in another matter for deciding fate of it, which suits have no nexus with each other---Prima facie there was substantive dispute between parties, which required deeper inquiry---High Court remanded the case with direction to Trial Court to decide leave to defend application of appellant/defendant afresh---Appeal was allowed accordingly.

KHURRAM MUGHAL vs Mrs — 2023 CLD 905 KARACHI-HIGH-COURT-SINDH

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