2014 PLP 1205 (CLC)

AMIN-UD-DIN KHAN, J.

Through this appeal, appellant has challenged the judgment and decree dated 30-4-2010 passed by learned Additional District Judge, Lodhran, whereby the suit under Order XXXVII of the C.P.C. for recovery of Rs.80,00,000/- on the basis of cheques filed by the respondent-plaintiff was decreed.

2. Learned counsel for the appellant-defendant argues that suit was filed on the basis of absolutely wrong and false facts, actually blank cheques were handed over to the respondent-plaintiff for repayment of price of fertilizer i.e. Rs.20000/-, Rs.25000/-, Rs.30000/- and Rs.50000/-; that the story narrated in the plaint is unbelievable; that one suit was not competent on the basis of four cheques; that learned trial Court has ignored Exh.D-1 which otherwise was proved by the appellant-defendant. Learned counsel prays for setting aside the judgment and decree passed by learned trial Court and dismissal of suit.

3. On the other hand, learned counsel representing the respondent-plaintiff argues that the judgment and decree passed by learned trial Court are absolutely in accordance with law; that the appellant could not highlight any defect in the impugned judgment and decree; that learned trial Court has compared the handwriting and signatures of appellant-defendant upon all the four cheques, which was permissible under Article 84 of the Qanun-e-Shahadat Order, 1984. Further argues that even the Exh.D-1 was never confronted to the plaintiff when he appeared as P.W.-1 as well as his son who appeared as witness as P.W.-2 and the said P.W.-2 was minor at the time of preparation of Exh.D-1 which is a forged document and that the requisite stamp has also not been paid, therefore it has no evidentiary value.

4. We have heard the learned counsel for the parties and gone through the record with their able assistance.

5. So far as Exh.D-1 is concerned, the agreement produced by the appellant-defendant to prove that after rendition of accounts this document was written in favour of defendant that no money was due against the appellant/defendant on 3-11-2007. We have noticed that this document was mentioned in the written statement but when the plaintiff appeared as P.W.-1 and denied from any such agreement, and in the cross-examination he has categorically stated that he has not signed or thumb marked any such document. The appellant was having the custody of this document but it was never confronted to the plaintiff when he appeared as P.W.-1 on 2-9-2009 and also the same was not confronted to his son who appeared as P.W.-2, the alleged witness of this document, this document was first time produced before the Court on 17-11-2009. Further it is on the plane paper and no stamp duty has been paid on this document in accordance with law. The stamp duty was required to be paid in accordance with Article 5 of the Schedule I of the Stamp Act, 1899 on instrument, which has not been paid. The record shows that under the order of Court sixty rupees in shape of revenue stamp was affixed on a plane paper and submitted in the Court to discharge the liability of stamp duty. We are afraid that it is misconceived, as upon this document non judicial paper of Rs.100/- was required for writing of an agreement and when the duty was not paid and the same was presented in the Court, the Court was bound to impound the same and ask the defendant to deposit the original duty along with the fine in the relevant account. In this view of the matter, this document when not confronted to the plaintiff, it cannot be used against him. Under section 35 of the Stamp Act, 1899 it is clear that instrument having not duly stamped is inadmissible in evidence and further under the said section when an instrument insufficiently stamped was brought before the Court, it was the duty of Court to impound the same and then ask the defendant to produce Exh.D-1 to pay the duty as well as fine in accordance with law. The same procedure has not been adopted as well as the defendant has also not offered to discharge his duty in accordance with law, therefore the said document cannot be used as evidence. Even otherwise we have noticed that in this document there is admission of issuance of cheques but there is no mention that for what amount the cheques were issued.

6. Moreover, under section 118 of the Negotiable Instruments Act, 1881 there are presumptions of correctness attached to a document i.e. as to date, as to time of acceptance, as to time of transfer, as to order of endorsement, as to stamp and that holder is a holder in due course. Even in this case issuance of cheques as well as signatures are admitted by the appellant-defendant. We have also perused the original cheques and we cannot disagree with the findings recorded by learned trial Court with regard to the exercise of powers conferred upon the Court for comparison of signatures and handwriting of the appellant-defendant under Article 84 of the Qanun-e-Shahadat Order, 1984. When the presumptions are attached to the negotiable instrument, then it was the responsibility of appellant-defendant to rebut these presumptions. He failed to discharge his duty. When the issuance of cheques and signatures thereupon are admitted, therefore the findings of learned trial Court with regard to filling up the cheques i.e. date of issuance, name of drawee as well as amount upon the cheques are in accordance with law when there is no rebuttal on the part of appellant-defendant.

7. So far as the argument of learned counsel for the appellant that on the basis of four cheques one suit was not competent, is concerned we are unable to understand that how this objection has been raised as the only drawer of four cheques is the appellant-defendant and drawee is the respondent-plaintiff, therefore there was no hurdle for filing of one suit for four cheques.

8. In the light of what has been discussed above, learned counsel for the appellant has not been able to point out any illegality or infirmity in the findings recorded by learned trial Court. Therefore, no case for interference by this Court while exercising jurisdiction under section 96 of the C.P.C. has been made out. In this view of the matter, the appeal is hereby dismissed with costs throughout. AG/M-271/L Appeal dismissed.