Law: Civil Procedure Code (V of 1908)

Section: 35A,O.XXXVII

Law: Civil Procedure Code (V of 1908)

Section: 35A,O.XXXVII

(a) Civil Procedure Code (V of 1908)-------O. XXXVII, R.2---Dismissal of suit for recovery of amount on basis of negotiable instrument---Plaintiff's contention in appeal was that plea raised by defendant in application for leave to defend suit and in his written statement were contradictory to each other---Validity---Plaintiff had not raised such objection before Trial Court---Written statement was read and considered by Appellate Court in circumstances. (b) Civil Procedure Code (V of 1908)--- ----O. XXXVII, Rr.2 & 3---Suit for recovery of amount on basis of dishonoured cheques---Garden leased out by plaintiff in defendant's favour---Dishonouring of cheque issued by defendant as part payment of lease money---Plea of defendant that he had paid amount of cheque to plaintiff; and that plaintiff used to purchase fuel from defendant's Petrol Pump, thus, amount due to each other had been adjusted upon rendition of accounts---Proof---Burden to prove such plea was upon defendant---Defendant had not produced sale records of his Petrol Pump---Statement of defendant as witness was that cheques were issued as a guarantee, which were returnable to him after payment of amount thereof to plaintiff---Defendant did not depose as to why he had not demanded back cheques after making alleged payments to plaintiff---Defendant neither remembered dates of alleged payments nor produced its proof---Defendant did not give even a single suggestion to plaintiff during his cross-examination that he had been paid amount of cheque in manner stated by defendant---Bank's Officer had corroborated plaintiff's statement regarding presentation and dishonouring of cheque---Nothing was on record to show that amount of cheques had been paid to plaintiff---Suit was decreed in circumstances. Waqar Anjum for Appellant. Malik Amjad Pervaiz for Respondent. Date of hearing: 3rd December, 2007. JUDGMENT MAULVI ANWARUL HAQ, J.---On 22-5-2002 the appellant filed a suit against the respondent for recovery of Rs.11,00,000 under Order XXXVII, C.P.C. According to the plaint, the appellant owns Kinoo garden and the respondent obtained a contract for plucking the fruit for the year 2001-02. The total amount was…

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