2020 PLP 1733 (CLC)

MUHAMMAD SAJID MEHMOOD SETHI, J.

Through instant appeal, appellant has assailed judgment and decree dated 09.11.2011, passed by learned Additional District Judge, Wazirabad, whereby suit filed by respondent for recovery of amount was decreed with costs.

2. Brief facts of the case are that respondent instituted a suit under Order XXXVII, C.P.C., for recovery of amount contending therein that appellant allegedly borrowed a sum of Rs.5,00,000/- from him and issued cheque dated 16.08.2016 for repayment of the same. The said cheque, on its presentation for encashment, was dishonoured due to insufficient funds. Appellant filed petition for leave to appear and defend the suit ("PLA"), which was allowed. Learned trial Court framed following issues:-

1. Whether the plaintiff is entitled to decree as prayed for? OPP 1-A. Whether the disputed cheque was issued without consideration? OPD

2. Whether the suit of the plaintiff is false, frivolous and instituted just to black-mail defendant? OPD

3. Whether plaintiff was having no lucus standi to institute suit in hand? OPD

4. Whether the plaintiff was stopped by his calls and deeds to institute present suit? OPD

5. Relief." Parties were directed to adduce their respective evidence. Respondent No.1 himself appeared as PW-1 and produced Muhammad Zubair as PW-2, Mian Ijaz as PW-3 and Muhammad Asghar ASI as PW-4. In documentary evidence, respondent No.1 tendered copy of FIR No.432/2016 as Ex.PA, cheque of Rs.500,000/- as Ex.PB, dishonor slip as Ex.PC, attested copy of report under section 173, Cr.P.C. as Ex.PD and copy of mutation No.4285 dated 30.09.2012 as Mark-A. Appellant appeared in the witness box as DW-2 and produced Javed Iqbal as DW-1 and Naeem Mukhtar as DW-3. In documentary evidence, appellant produced copy of his CNIC as Mark-D1, license as Mark-D2 and claim of submission receipt as Mark-D

3. After hearing arguments of learned counsel for the parties, learned trial Court proceeded to decree the suit in the sum of Rs.5,00,000/- with costs vide judgment and decree dated 09.11.2017. Hence, instant appeal.

3. Learned counsel for appellant submits that respondent has not disclosed the source from where he gathered the suit amount and date, time and place of alleged payment to appellant. He adds that appellant issued cheque as a guarantee on the request of Abdul Latif, real brother of respondent, who was living in Saudi Arabia. He maintains that principal debtor was not arrayed as party in the suit, thus, suit was not maintainable. He further submits that there are material contradictions in the statements of PWs, which have smashed the case of respondent, as PW-1 / respondent stated that amount was obtained as loan whereas PW-2 stated that the amount was delivered for joint business. He adds that documents could not have been exhibited in the statement of learned counsel for respondent. He maintains that impugned judgment and decree is the result of misreading and non-reading of evidence brought on record. He argues that material aspects of the matter have been overlooked while passing impugned judgment and decree, which is not sustainable in the eye of law. He has referred to judgment dated 10.04.2013, passed by learned Division Bench of this Court in Criminal Appeal No.176 of 2013 titled Jamshed Ahmad Khan Dasti v. The State and another.

4. Conversely, learned counsel for respondent defends the impugned judgment and decree and submits that no objection was raised by appellant at the time of exhibiting the documents, so, subsequent objection in this regard has no force. He submits that appellant has failed to discharge the burden of proof qua non-receiving of suit amount from respondent, through cogent and confidence inspiring evidence. He argues that plea of issuing blank cheque is an after-thought, thus, not sustainable at this stage. In the end, he submits that learned counsel for appellant has failed to point out any illegality or legal infirmity in the impugned judgment and decree, therefore, the same is liable to be upheld. He has relied upon Abdullah and 3 others v. Abdul Karim and others (PLD 1968 Supreme Court 140), Ghulam Muhammad v. United States Agency for International Development (US. AID) Mission, Islamabad and another (1986 SCMR 907) Mian Tajammul Hussain and 3 others v. State Life Insurance Corporation of Pakistan (1993 SCMR 1137), Muhammad Rashid Khan v. Noor Muhammad Khan and 2 others (2002 CLC 749), S.A.K Rehmani v. The State (2005 SCMR 364), Raza Munir and another v. Mst. Sardar Bibi and 3 others (2005 SCMR 1315), Muhammad Azizur Rehman v. Liaquat Ali (2007 CLD 1605), Muhammad Iqbal v. Mehboob Alam (2015 SCMR 21), Alhaj Diwan Bukhtiar Said Muhammad v. Diwan Maudood Masood (2006 YLR 2517), Muhammad Imran Khan and another v. Ehsanullah and others (2016 MLD 418), Naeem Tufail v. Jubilee Insurance Company Ltd. through Chairman and another (2017 CLD 1122), Muhammad Shafi v. Ashiq Hussain (2017 CLD 1593) and Muhammad Nawaz v. Qazi Muhammad Rashid (2018 CLD 104).

5. Arguments heard. Available record perused.

6. Perusal of record reveals that appellant has neither denied the factum of issuance of cheque in question in the name of respondent nor disputed the amount of Rs.5,00,000/-. His plea is that the cheque in question was issued as a guarantee in favour of respondent on the instructions of his brother in law namely Abdul Latif. The said Abdul Latif sent an amount of Rs.2,50,000/- to Abdul Wakeel to deposit the same with Mudassar Afzal, agent of Double Shah. Appellant only accompanied said Abdul Wakeel, who deposited said amount with Mudassar Afzal and appellant only issued cheque in question in the name of respondent. Appellant has neither produced said Mudassar Afzal and Adul Wakeel in the witness box nor requested learned Trial Court to summon them as court witnesses. It is well settled that parties are supposed to produce the best piece of available evidence before the Court and if it failed to produce the same, presumption would be drawn that had said piece of evidence been produced before the Court, same would have been unfavourable to the party withholding it. Appellant neither examined witnesses referred nor any other cogent evidence has been produced.

7. As per Article 118 of the Negotiable Instruments Act, 1881, there is an initial presumption that a negotiable instrument is made, drawn, accepted or endorsed for consideration but this presumption is rebutable and the onus is on the person denying consideration to prove the same. In the instant case, appellant has failed to establish his pleas that he issued a guarantee / blank cheque. Appellant was under heavy burden to prove his pleas but he has miserably failed to substantiate his case through valid evidence. Appellant appeared as his own witness and admitted that cheque bore his signatures but he did not file suit for cancellation of the same alleging either it was a guarantee / blank cheque. No discrepancy is found in the judgment of learned Trial Court on the basis of which same can be declared to have been passed on erroneous exercise of jurisdiction or improper appreciation of evidence available on record. Hence, findings of learned Trial Court on Issues Nos.1 and 1-A are correct and therefore are maintained.

8. So far as argument of learned counsel for appellant that issuance of valid cheque, genuineness of its contents and its dishonor on presentation for encashment were not proved by respondent, is concerned, suffice it to say that besides other evidence noted above, respondent produced Operation Manager of the bank concerned as PW-3, who categorically stated that cheque in question was presented for encashment on 19.09.2015, which was returned un-cashed with memo of return. No cross-examination upon said depositions of the witness was conducted by appellant side. The statement coupled with cross-examination is reproduced as under:- "States that the disputed cheque was presented for encashment in our bank on 19.09.2015. The cheque was returned un-cashed to the holder due to insufficient balance and in this regard, memo. of return of cheque was also given to the holder. Account is in the name of Muhammad Kamran Butt. According to bank record, the signatures affixed on cheque was correct. XXXXX by defendant counsel. (Before embarking upon cross-examination, learned counsel for defendant raises an objection that in the list of witness the name of present plaintiff's witness is not mentioned whereas just record keeper has been mentioned). (Objection of the learned counsel for defendant is not sustainable as operation manager is custodian of bank record, therefore, his objection is over ruled.) I am appointed as operation manager in the bank in this branch since September 2013. I cannot tell whether the disputed cheque is of guarantee. It is incorrect to suggest that I am deposing falsely with the connivance of plaintiff." In the light of above statement of PW-3, the argument of learned counsel for appellant has no force.

10. The next argument that cheque could not have been exhibited in the statement of learned counsel for respondent is also not tenable because production of document and its admission are two different subjects. A document can be produced in evidence, which is always subject to admission as required under Article 78 of Qanun-e-Shahadat Order, 1984. The Courts are vested with the authority and jurisdiction to ascertain the genuineness and authenticity of any document in order to arrive at just and fair conclusion on the touchstone and parameters laid down in the said Article. It is well settled that when the document has been exhibited in evidence without any objection by the opposite party, the same is to be deemed as proved in all respects. Objection against admission of a document cannot be allowed at any subsequent stage as held by the Hon'ble Supreme Court in Ch. Muhammad Saleem v. Muhammad Akram and others (PLD 1971 Supreme Court 516) and Muhammad Iqbal v. Mehboob Alam (2015 SCMR 21). In the case of Ch. Muhammad Saleem supra, the Hon'ble Apex Court has held as under:- "Once a document has been admitted in evidence without objection its admissibility cannot subsequently be challenged on any technical ground or any ground which does not affect the parties." Similarly, in the case of Muhammad Iqbal supra, the Hon'ble Supreme Court has observed as under:- "5. .... With regards the appellant's argument that such account does not belong to the respondent and that the certificate Exh.P2 has not been proved by the respondent / plaintiff and that the said document was inadmissible in evidence thus much credence cannot be given to it, it suffices to say that since no objection as to its proof was raised by the appellant at the relevant time when it was taken in evidence by the court, therefore, it validly formed part of the respondent's evidence; and thus in law the appellant shall be considered to have waived his right to resist the mechanics of the proof thereof. ...."

11. In the presence of above case law of Hon'ble apex Court, the case law cited by learned counsel for appellant is on distinguishable facts and circumstances. Even otherwise, the law laid down by Hon'ble Supreme Court has to be followed as per Article 189 of the Constitution of the Islamic Republic of Pakistan, 1973. Learned counsel for appellant lastly argued that there is contradiction regarding purpose of payment made to the appellant. Needless to say that in view of admission of issuance of cheque and failure to prove that it was without consideration on the part of respondent, this minor contradiction is of no material significance. Learned counsel for appellant has failed to point out any illegality legal infirmity or jurisdictional defect in the reasons recorded by learned Court below while deciding and decreeing the suit. Hence, findings on all the issues reproduced supra are maintained and upheld.

12. In view of the above, instant appeal, being devoid of any merit, is dismissed with no order as to costs. KMZ/M-71/L Appeal dismissed.