2024 PLP 1099 (CLD)

Arbab Muhammad Tahir, J.

Through the listed appeal in terms of Section 96, C.P.C., appellant namely Saad Muhammad Abbasi (hereinafter to be referred as 'the defendant' in the suit) assails ex-parte judgment and decree dated 20.04.2022 passed by the learned Additional District Judge, Islamabad West, whereby suit under Order XXXVII, C.P.C., filed by respondent namely Syed Ijaz Ali (hereinafter to be referred as 'the plaintiff' in the suit) on the basis of cheque No. 10398556, worth Rs.10-million dated 23.11.2016 was decreed by observing as under:- "There is nothing on record to rebut the claim of plaintiff with respect of documentary evidence produced by him. Therefore, in absence of any evidence in rebuttal, the plaintiff's evidence stands against the defendant un-rebutted, un-denied and unchallenged regarding recovery of amount against the negotiable instrument. Therefore, this court has no other option but to decree the 1,00,00,000/- (ten million) and plaintiff is entitled for recovery of above said amount from the defendant. No order as to cost. Decree sheet be prepared." {Emphasis supplied}

2. Precisely, facts relevant and essential for adjudication of the listed appeal are to the effect that on 26.10.2017, the respondent/plaintiff filed the subject suit on the basis of cheque worth Rs.10 million, pursuant to investment agreement dated 03.01.2016, ('the agreement') that stood terminated in the midst on account of stated mischief attributed to the appellant/ defendant due to non-payment of profits due. In response to notice, the appellant/defendant entered appearance and filed application for leave to appear and defend the suit. The Trial Court allowed the said application vide order dated 15.05.2018 subject to furnishing of bank guarantee to the tune of Rs.10-million. The appellant/defendant being dissatisfied with the condition, filed Civil Revision Petition No. 191 of 2018 before this Court which was disposed of vide order dated 04.11.2021, whereby order-in-original dated 15.05.2018 was modified in terms that the appellant/defendant was allowed to submit any security of the like amount to the satisfaction of Trial Court within two weeks.

3. During pendency of C.R. No. 191/2018, the learned Trial Court continued with the proceedings on directions of this Court, framed issues and recorded examination-in-chief of respondent/plaintiff as PW-1, who on 14.12.2020 tendered copy of sale deed Exh-P1, agreement Exh-P2, deposit receipt Exh-P3, bank statements Exh-P4 to P7, termination notice Exh-P8, the cheque Exh-P9, dishonor slips Ex-P10 and P-11, copy of FIR No. 68/2017 under section 489-F, P.P.C. PS Ramna Islamabad as Exh-P

12. After recording examine in-chief of the respondent/plaintiff, the case was adjourned for cross-examination. The suit remained pending for the purpose when it was dismissed for non-prosecution vide order dated 06.11.2021.

4. The suit was subsequently restored on the application of the respondent/plaintiff and the appellant/defendant was directed to furnish surety bond of Rs.10-million vide order dated 10.02.2022. For the purpose, case was adjourned to 03.03.2022, 18.03.2022 and lastly for 01.04.2022 when right of the appellant/defendant to appear and defend the suit was closed and the case was set for recording of ex-parte evidence of the respondent/plaintiff. On 15.04.2022 the respondent/ plaintiff got recorded statement wherein he relied upon his statement recorded on 14.12.2020. The learned Trial Court after hearing arguments decreed the suit ex-parte in terms noted in paragraph-1 above, hence instant appeal.

5. Learned counsel for the appellant/defendant argued that even in case where the appellant/defendant is proceeded ex-parte, it is mandatory for the Court to give due consideration to the claim on the touchstone of the principles on the subject. According to the learned counsel, claim of the respondent/plaintiff is, primarily, rested upon distorted facts, based upon inadmissible evidence and concealment of facts including former suits and that in terms of section 96, C.P.C., appellant/defendant retains statutory remedy of appeal to question ex-parte judgment and decree, which in the backdrop of the evidence deserves outright dismissal of suit. The learned counsel also highlighted the previous litigation between the parties on the subject.

6. On the other hand, learned counsel for the respondent/ plaintiff repelled the above submissions by contending that the mischief attributed to the respondent/plaintiff is floating on the record as he not only failed to furnish surety bond within two weeks as directed by this Court but also failed to avail ample opportunities afforded to him before closing his right to defend the suit. The learned counsel argued that there is no contest on the point that there was business relation between the parties, reduced into writing through an agreement, followed by issuance of cheque, not denied by the appellant/defendant therefore in such eventuality, the course adopted by the Trial Court is in accordance with evidence on record therefore, impugned judgment and decree do not call for any interference.

7. Heard, record perused.

8. Before dilating upon the mischief attributed to the appellant/defendant and its consequence, made basis to close his right to contest the suit, it is necessary to ascertain as to whether the course adopted by the trial court for decreeing the suit of the plaintiff had been in accordance with the law and principles on the subject and for the purpose, evidence on record has carefully been gone through in the light of submissions advanced by learned counsel for the parties.

9. It is significant to note that the agreement Ex-P2, bank deposit slip Ex-P3, Bank Statements, the cheque Ex-P9 and dishonor slip P10 are photocopies of the documents. It is well settled that the documents must be proved by primary evidence. In certain cases same can be proved through the secondary evidence in terms of Article 76 of the Qanun-e-Shahadat Order, 1984. The secondary evidence is an exception to general rule and only meant for the purpose to cater a genuine need and hardship. It is not to be allowed in routine or without complying with the requirements mentioned under Articles 76 and 77 of the Order 1984. The contents of the documents can only be proved through secondary evidence if the conditions mentioned under Article 76 are available which should be satisfied first. This Article provides an alternate mode and method of proving the documents which for various reasons could not be produced. When primary evidence is not available or produced, law permits secondary evidence which remedy is designed for the protection of person who despite best efforts is unable, from the circumstances beyond his control, to produce the primary evidence. Where a person is unable to bring the original documents despite a reasonable efforts, the Court is competent to admit secondary evidence but at the same time, this should also to be kept in mind that this benefit is not intended for a person who intentionally or with some ulterior motives or sinister objects refused to produce the documents in court which is in his possession, power or control. The Court is competent to determine whether sufficient ground has been made out or not for the admission of secondary evidence which discretion is to be exercised keeping in view the parameter contained in Article 76 and facts and circumstances of each case as secondary evidence is given to prove the existence, condition or contents of documents and nothing more beyond that. The impugned judgment, on the face of it, is short of pre-requisites on the subject.

10. Bare perusal of crucial document i.e. the agreement Exh-P2 reveals that same is a photocopy of front page with blank reverse side. There is no explanation as to on what grounds, covenants contained therein were admitted as correct. It is for the respondent/plaintiff to establish his case by producing evidence of unimpeachable character as any defect in defense cannot be made basis to accept the claim of the respondent/ plaintiff. The impugned judgment is short of reasoning as to how photocopies were allowed to be exhibited and whether the claim set in plaint had been in accordance with the terms of the agreement Exh-P2 and that the same lend support to the claim of the respondent/plaintiff. It is mandatory for the Trial Court to decide the case strictly in accordance with parameters on the subject. The law, in no way, recognizes acceptance of claim in ex-parte case as it is, without subjecting the same to judicial scrutiny on the touchstone of the principles on the subject.

11. Furthermore, in concluding paragraph, Trial Court observed that "court had left no option but to decree the suit". This observation, on the face of it, is contrary to law as not only in an ex-parte case, but even in case of a conceding statement, it is obligatory for the court to appreciate the veracity of the claim of the respondent/ plaintiff. The court is under obligation to see the legality and genuineness of the issue brought before it. The observation "court left with no option" reflects dealing with a cause in a mechanical manner without application of judicial mind. Reliance is placed upon case of "Misbah Khanum v. Kamran Yaseen and another (2022 SCMR 1629)" and judgment of this Court in the case of "Hamid Nasrullah Ranjha v. Civil Judge West Islamabad" (2024 MLD 10)".

12. It is well settled that the act of Court shall prejudice no one and where any Court did not comply with a mandatory provision of law or omitted to pass an order in a manner prescribed by law, the litigant could not be taxed much less penalize for the act or omission of the Court. Fault in such cases did lie with the court and not with the litigant and no litigant should suffer on such account. Reliance is placed upon case of "Muhammad Ijaz and another v. Muhammad Shafi through LRs (2016 SCMR 834). In such like situation, where injustice caused due to act or omission on the part of court, the courts are required to remedy the defect that occurred as a consequence thereof. Reliance is placed upon Shirin and 4 others v. Fazal Muhammad and 4 others (1995 SCMR 585) and Jai Berham v. Kedar Nath (AIR 1922 PC 269).

13. Record further reveals that subject suit, filed in October 2017 is the second suit of the respondent/plaintiff. The first one was filed by him on 21-03-2017 in Abbottabad wherein the plaint was returned for its presentation before appropriate forum vide order dated 13-09-2017. On 03-07-2021, during pendency of the present suit, respondent/plaintiff filed two separate suits, one against Iqbal and the appellant/defendant and other against Muhammad Ghazi and the appellant/defendant for the recovery of certain amounts emanating from the same agreement. The said suits were withdrawn vide order 25-04-2022. In the said suits, respondent/plaintiff had asserted to have made payments to said persons pursuant to agreement Ex.P-2 which is subject matter of the instant suit. There is no explanation as to why during pendency of the suit in Islamabad, the respondent/plaintiff filed two separate suits at Abbottabad and then got the same withdrawn, leaving an impression to have relinquished his claim against the said persons. Furthermore, in the FIR got registered by the respondent/plaintiff against the appellant/defendant on account of dishonoring of the subject cheque, the appellant/defendant was acquitted after full length trial. There is nothing on record to show that the respondent/plaintiff assailed the said judgment of acquittal through an appeal. All these facts warrant due appreciation and judicial scrutiny for just decision of the case under the principle of fair trial envisaged in Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973.

14. The above aspects if seen in conjunction with the mischief attributed to the appellant/defendant whereby he was held guilty of non-submission of surety bond as directed and permanently precluded to contest the suit, lead to observe that the appellant/defendant should be afforded an opportunity to contest the suit, inter alia, for the reasons mentioned above coupled with the fact that law favors adjudication on merits instead of technical knockout and that claim set in plaint and counter response mentioned in application for leave to appear and defend the suit and the written statement, in the peculiar circumstances cannot be decided without recording evidence, pro and contra. It is also for the reason that certain transactions pursuant to agreement Exh.P2, in the light of respective pleadings, are admitted as in plaint, the respondent/plaintiff admitted receipt of profits for certain period whereas on the other hand claim of the appellant/ defendant to have made payments pursuant to agreement Ex.P2 is based upon documents i.e. receipts and online deposits.

15. The sequel of above discussion is that impugned ex-parte judgment and decree dated 24.04.2022 are not legally sustainable, consequently set aside. The result would be the trial court shall now proceed with the suit from the stage where it had been after filing of written statement by the appellant/ defendant and shall decide the same in accordance with law after recording evidence of the parties. The application for leave to appear and defend the suit filed by the appellant/defendant shall be deemed to have been allowed on the basis of surety bond tendered before this Court, pursuant to order dated 25.05.2022 passed in listed appeal, dully verified by the concerned revenue officer, which shall be transmitted to the Court concerned for placing the same on record of the suit. The suit pertains to the year 2017, therefore, learned Trial Court shall make every endeavor to conclude the trial of the subject case within a period of three months of the receipt of this judgment.

16. The listed appeal is allowed in above terms. Copy of this judgment shall be transmitted to the learned Trial Court for compliance in due course. It is clarified that observations recorded hereinabove are restricted to appreciate the veracity of the impugned ex-parte judgment and decree and shall have no impact upon merits of case of either side in post-remand proceedings before the Trial Court which shall be decided on its own merits in accordance with law. No order as to costs. MQ/94/Isl. Appeal allowed.