Islamabad High Court Sets Aside Ex-Parte Judgment in Cheque-Based Recovery Suit

Islamabad 09-07-2024: The Islamabad High Court, presided over by Mr. Justice Arbab Muhammad Tahir, has set aside an ex-parte judgment and decree issued by the Additional District Judge, Islamabad West. The decision came in the appeal case of [RFA No. 286 of 2022], involving a cheque-based recovery suit.

The appeal was filed by the appellant against an ex-parte judgment dated April 20, 2022, which decreed a suit under Order XXXVII CPC in favor of the respondent. The suit was based on a cheque worth Rs. 10 million, issued pursuant to an investment agreement dated 03-01-2016. The Trial Court had decreed the suit without any rebuttal evidence from the appellant.

          The Counsel for the appellant argued that the Trial Court erred in granting an ex-parte decree without proper judicial scrutiny of the respondent's claims. It was contended that the Trial Court failed to consider the mandatory requirements for admitting secondary evidence under Articles 76 and 77 of the Qanoon-e-Shahadat Order, 1984, as most of the documentary evidence presented by the respondent were photocopies.

The respondent's counsel maintained that the appellant had failed to furnish the required surety bond within the stipulated time and had not utilized the opportunities provided to defend the suit. It was argued that the Trial Court's decree was justified given the appellant's non-compliance and failure to contest the suit.

The Islamabad High Court highlighted several key legal principles that the appellant retains the statutory remedy to appeal against an ex-parte judgment and decree. Leave to defend must be granted under specific conditions, ensuring the defendant's ability to contest the suit effectively. The Court emphasized the necessity of primary evidence and the strict conditions under which secondary evidence may be admitted. The Courts must scrutinize claims and evidence even in ex-parte cases to ensure justice. The Courts are responsible for rectifying their omissions to prevent litigants from suffering unjustly. Ensures all parties receive a fair opportunity to present their case. The Courts should favor adjudication based on the merits of the case rather than dismissing cases on technical grounds.

The Islamabad High Court set aside the ex-parte judgment and decree, remanding the case back to the Trial Court for a fair trial on merits. The Trial Court is directed to proceed from the stage after the filing of the written statement and to ensure the suit's adjudication within three months.

This judgment reinforces the principles of fair trial and judicial scrutiny, emphasizing the importance of primary evidence and the proper admission of secondary evidence in civil suits.

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