2017 PLP 58 (CLCN)

O. XXXVII, R.2 & O.XVII, R. 3

Suit for recovery of money based on negotiable instrument

Right to produce evidence, closure of

Proof as to issuance of cheque

Respondent filed suit under O.XXXVII, C.P.C. on basis of dishonoured cheque admittedly issued by appellant

Appellant remained imprisoned for six months under criminal proceedings/FIR lodged on same cheque

Respondent substantiated his claim by leading evidence, but appellant's right to produce evidence was closed for his failure to produce evidence in rebuttal after many opportunities for the same

Trial Court decreed the suit as prayed for

Pleas raised by appellant were that there was no justification for Trial Court to close his right to adduce evidence as he was made to suffer on the same cheque through both civil and criminal proceedings, evidence produced by respondent was misconstrued and in absence of rebuttal respondent had to stand on his own legs and prove his case by adducing convincing, cogent and incontrovertible evidence

Validity

Appellant did not produce any evidence in support of his stand despite availing several opportunities, and Trial Court committed no irregularity in closing appellant's right to produce evidence

Onus to prove issuance of cheque was not very heavy on respondent as issuance was admitted fact and respondent had succeeded in discharging the onus by producing evidence which remained unshattered during cross-examination

In absence of evidence in rebuttal, Trial Court was left with evidence produced by respondent

Findings of Trial Court were in accord with evidence and circumstances of case and the same could not be interfered with

High Court dismissed appeal being devoid of any merits. [Paras. 8, 12, 22 & 23 of the judgment]

S. 118

Qanun-e-Shahadat (10 of 1984), Art. 129 (b)

Issuance of cheque

Presumption as to consideration

Appellant failed to rebut statutory presumption raised under S. 118 of Negotiable Instruments Act, 1881 as he had not led evidence in disproof of assertions made in plaint and proved by respondent

Under S. 118 of Negotiable Instruments Act, 1881, court had to presume that the cheque was made out, and drawn against, consideration

Although presumption was rebuttable, but unless the presumption was rebutted by leading cogent, convincing and confidence-inspiring evidence, court might place implicit reliance upon negotiable instrument on basis of which suit had been filed. [Paras. 13 & 20 of the judgment]

Adjournments, grant of

Justice is to be tampered with mercy and parties are to be provided an adequate opportunity to establish their respective cases, but it does not mean that they are to be allowed to regulate proceedings of courts or the courts are to be left at their mercy

If proceedings are to be concluded expeditiously in given case, the courts concerned would have to take extraordinary measures to curb the tendency of seeking adjournment after adjournment that too without any just and reasonable cause. [Para. 11 of the judgment]

Criminal and civil proceedings, simultaneous initiation and conduct of

Scope

FIR had also been lodged on basis of same instrument and executant remained behind the bars for six months as result thereof, and he was being made to suffer again on basis of same document in a civil suit

Validity

Civil and criminal proceedings might be carried out simultaneously on basis of the same instrument and proceedings in both were to be conducted on their own merits

Registration of FIR was no ground to stop proceedings in a suit. [Para. 21 of the judgment]