2020 PLP 772 (MLD)

MUJAHID MUSTAQEEM AHMED, J.

By filing this Regular First Appeal in terms of section 96 of Civil Procedure Code, 1908, the appellant has challenged the legality and propriety of the judgment dated 23.07.2012 by which suit of the respondent for recovery of Rs.5,00,000/- stood decreed.

2. The relevant features of this appeal are, that the respondent on 02.02.2011 filed suit under Order XXXVII, Rules 1 and 2, C.P.C. against the present appellant for recovery of Rs.5,00,000/, on the basis of dishonored cheque Ex.P1, The respondent in his suit claimed that he had good relations with the appellant and the appellant along with Imtiaz Ahmad.PW-2 approached him and borrowed Rs.5,00,000/- and promised to return this amount in "Kharif" 2010. When subsequently this amount was demanded, the respondent on 17.1.2011 issued cheque Ex.P1 in his favour and on 22.01.2011 it was presented to the bank but it was dishonored as per Memo. Ex.P2 (personal presentation of drawer required as it was thumb account). As such the respondent prayed for passing of decree of Rs.5,00,000/- in his favour whereas the appellant contested the suit, denied borrowing this amount and pleaded that in fact he had purchased 40-bags of fertilizer from the respondent valuing Rs.1,28,000/- and the open cheque was issued towards that fiscal liability. The appellant further contended that he utilized 15 bags of fertilizer and returned the remaining bags being sub-standard fertilizer whereas he has sold one ox of Rs.35,000/- to the respondent and as such he was liable to pay only Rs. 13,000/- balance amount. To settle this controversy, learned Additional District Judge framed the following issues:-

1. Whether the plaintiff is entitled to the decree of Rs.5,00,000/- on the basis of cheque No.D-989113 dated 17.01.2011? OPP

2. Whether the suit is not maintainable in its present form? OPD

3. Relief.

3. After recording evidence of parties vide judgment dated 23.07.2012 impugned herein, the suit of the respondent stood decreed. As such the appellant has assailed this judgment and decree passed by the learned Additional District Judge Chishtian, Distt. Bahawal Nagar mainly on the grounds of against facts, law based on misreading and non-reading of evidence.

4. Arguments heard. Record perused.

5. In plaint, the respondent has not mentioned the date when the amount was advanced to the appellant and the names of witnesses (except PW.2) in whose presence this transaction took place. Similarly, he has not mentioned the date, place or the name of witnesses before whom the appellant has issued cheque in his favour. The respondent appeared as PW-2 and narrated the case in line with set in plaint. He has not given any specific date when this amount was given to the appellant. The respondent claimed that this amount was paid by him to the appellant in presence of Haji Imtiaz Ahmad PW-3, Muhammad Akmal, PW-4 but latter's name is not mentioned in the plaint in this context. Haji Imtiaz Ahmad PW-3, father-in-law of the respondent corroborated his version in examination-in-chief. During cross-examination he deposed that after receiving loan amount, the appellant alone returned to his house. Muhammad Akmal, PW-4 also deposed that loan amount was paid to the appellant in his presence and subsequently the appellant has issued cheque of Rs.5,00,000/- in favour of the respondent. During cross-examination he deposed that after borrowing the amount the appellant along PW.2 proceeded from the house of the respondent. He conceded that the cheque was issued as "guarantee". This witness also deposed that on the instructions of the appellant he has filled the particulars of the cheque. In rebuttal the appellant as DW-1 deposed that he has just purchased 40-bags of DAP (Fertilizer) from the respondent and the version of the respondent regarding recovery of Rs.5,00,000/- is against facts. During cross-examination he deposed that he had thumb marked, the cheque and on return of sub-standard fertilizer the cheque was not returned to him. He categorically denied the suggestion that he had borrowed Rs. 5,00,000/- from respondent and issued cheque against that amount.

6. The careful scrutiny/examination of evidence on record leads me to an irresistible conclusion that neither in plaint nor in evidence PWs have given any specific date when this loan amount was advanced to the appellant. It is not readily believable that just on request of the appellant such huge amount was advanced by the respondent without any documentation or even issuance of cheque in favour of the respondent at that time. Obviously both the parties have no blood or family relation. Mere fact that the appellant is in cultivating land on lease adjacent to land of father-in-law of respondent (PW.3) is not sufficient to pay such huge amount without any formal documentation. As such I am justified to draw the conclusion that on the basis of evidence on record passing on Rs.5,00,000/- to the appellant is not established particularly when no date of such transaction has been mentioned in plaint and in testimony of PWs. The contention of learned counsel for the respondent is that issuance of cheque is not denied by appellant, as such, cheque is negotiable instrument and under section 118 of the Negotiable Instruments Act XXI of 1881 burden of proof of non-payment of consideration lies on appellant and he has failed to discharge such onus and as such learned Additional District Judge has rightly decreed the suit of the respondent. In support of this contention he has relied on cases titled Muhammad Aziz-ur-Rehman v. Liaqat Ali (2007 CLD 1605 Supreme Court of Pakistan) and Muhammad Nawaz v. Qazi Muhammad Rashid (2018 CLC Note 34 Lahore (Multan Bench). Whereas learned counsel for the appellant has relied on case reported as Asif Ali and 6 others v. Saeed Muhammad (2010 CLD 1301 (DB) wherein relying on the principle handed down in Salar Abdur Rauf v. Mst. Barkat Bibi (1973 SCMR 332) it has been held that under section 118 Act ibid, it is not a conclusive presumption of drawing consideration of negotiable instruction, rather it can be held to be rebuttable in nature and initial burden of proving the case i.e. Negotiable Instrument/cheque has been executed against consideration lies on the plaintiff.

7. Thus to my view in this case the respondent has failed to discharge initial onus of passing on Rs, 5,00,000/- to the appellant and issuance of cheque by the appellant admitting that financial liability, as such learned Additional District Judge in stereo style, without appreciating the evidence on record, decreed the suit of the respondent. The judgment impugned herein is based on mis-reading and non-reading of evidence and as such not sustainable. Consequently, instant appeal is allowed. Impugned judgment and decree is set aside and suit of the respondent for recovery of Rs.5,00,000/- stands dismissed. SA/G-16/L Appeal allowed.