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Petitioner: AFTAB AHMAD KHAN VS Respondent: ASGHAR HUSSAINHonorable Justice Syed Abdur RehmanMunib Ahmed Khan,M. Atiq Beg
1989 M L D 4391
1989 M L D 4391
[Karachi]
Before Syed Abdur Rehman, J
AFTAB AHMAD KHAN--Plaintiff
Versus
ASGHAR HUSSAIN--Defendant
Suit No.918 of 1988 and Civil Miscellaneous Application No.408 of 1989, decided on 28th February, 1989.
Civil Procedure Code (V of 1908)--
---OXXXVII, R.3--Application for leave to defend suit---Suit for recovery filed by plaintiff against defendant on basis of a pronote execution of which was admitted by defendant but he contended that he had returned the amount to plaintiff and that interest was yet to be paid--Photo-copy of two leaves of diary written by plaintiff was produced in Court which supported case of plaintiff- Held, since application for leave to appear and to defend did not show any substantial question of law or fact needing trial and defence set up by defendant was illusory, no action was called for on application--Suit of plaintiff was decreed in circumstances.
Munib Ahmed Khan for Plaintiff.
M. Atiq Beg for Defendant.
Date of hearing: 28th February, 1989..
JUDGMENT
This is an application under Order 37 Rule 3 C.P.C. It is accompanied by an application for condonation of delay under Section 5 of the Limitation Act.
2. The plaintiff has filed this suit on the basis of a Pro-Note for Rs.1,15,000 executed by the defendant in favour of the plaintiff on 25-1-1987. The defendant had admitted that he had executed the Pro-Note. All that he has stated in his affidavit in support of his application under Order 37, Rule 3, C.P.C. is that the defendant has already paid the amount to the plaintiff and his claim already stands discharged. In support of what he has stated he has produced photo copies of two leaves from Diary alleged to be written by the plaintiff. These leaves on the contrary support the plaintiff's case and show that on 25-1-1987 there was a balance of Rs.1,15,652 in favour of the plaintiff. Even if it is taken to be correct A then also this is to be taken as the amount which was the consideration of the Pro-Note. The second leg of the arguments of Mr. Atiq Beg was that the principal amount has been returned by the defendant to the plaintiff. The amount of Rs.1,15,652 was the interest which cannot be allowed to be recovered by the plaintiff from the defendant. This argument is also not sound.
3. I, therefore, hold that this application does not show any substantial question of law or fact needing trial and the defence set up is illusory. I, therefore, dismiss C.M.A. No.408 of 1989 as well as the application for condonation of delay under Section 5 of the Limitation Act.
4. In consequence thereof I decree plaintiff's suit for a sum of Rs.1,15,000. Mr. Munib Ahmed Khan gives up the claim of any further interest. The parties to bear their own costs.
M.Y.H./A-616/K
Suit decreed.