' MUHAMMAD RAZA KHAN, J.---This judgment will also dispose of the connected Civil Revision No.131 of 2002 as identical questions of law and facts are involved in both these petitions.
2. Sardar Khan plaintiff filed two suits on 2-10-1993 and 22-3-1994 for recovery of Rs.1,58,000 and Rs.1,05,000 on account of dishonotir of Cheques No.PLS -31-894142 dated 15-1-1993 and CDZ 898899 dated 15-8-1993 respectively. The cheque for Rs.1,58,000 was drawn on Muslim Commercial Bank, Mughal Gate, Multan whereas cheque for Rs.1,05,000 was drawn on Account No.328 Habib Bank Chah Balki Wala, Sher Shah Multan. The plaintiff deposited the cheques on various dates in his Account at National Bank of Pakistan, D.I. Khan but both the cheques were dishonoured. Hence civil suits were filed for the recovery of money. The suits were contested by the defendant. Written statement was submitted, issues were framed and the parties were required to produce evidence.
The plaintiff produced detailed evidence whereas the defendant was satisfied by recording his solitary statement. At the conclusion of proceedings, the learned Civil Judge-III, D.I.Khan, vide judgment and decree dated 1-11-2000, separately in both the cases, passed the decree for recovery of Rs.1,58,000 and Rs.1,05,000 respectively. These judgments and decrees were challenged in appeal and the learned Additional District Judge-II, D.I. Khan, vide separate judgments dated 22- 5-2002, dismissed the appeals on payment of Rs.5,000 as cost in each of the case. The said judgments of the learned Appellate Court have been challenged through these two revision petitions.
3. The learned counsel for the petitioner argued that the plaintiff/ respondent has failed to establish the grant of loan for which the alleged cheques were issued, therefore, the cheques were without consideration and both the Courts have erred in appreciating this aspect of the case.
4. The learned counsel for the respondent argued that the respondent/ plaintiff has proved, by sufficient evidence, that the said cheques were issued and that it was the responsibility of the defendant/ petitioner to have explained the circumstances in which he issued the cheques without consideration, if any.
5. Cheques are special instruments regulated by Negotiable Instruments Act of 1881. Special rules of evidence as contained in section 118 of the said Act state that:-- "Until the contrary is proved, the following presumption shall be made:---
(a) Of consideration that every Negotiable Instrument was made or drawn for consideration and that every such instrument when it . Has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration;
(b) ................
(c) ........ ...."
When the law prescribed that presumption shall be attached to a particular fact, the said fact has to be presumed to be true unless otherwise is proved by the party alleging the same. The learned counsel for the petitioner referred to the plaint which was merely a civil suit and not a suit under Order XXXVII, C.P.C. And argued that the presumptions contained in the Negotiable Instruments Act shall not be applicable because it was only a civil suit and the responsibility of the plaintiff to prove his case in accordance with the standards of legal requirement could not be avoided. I am afraid, this argument is not available because Order XXXVII, C.P.C. Merely provides an option to the plaintiff to avail the remedy of summary trial where the suit is filed before the principal Court of original civil jurisdiction in the District and special process under the said Order is issued and the defendant is not entitled as a matter of right to defend the case or to file written statement. He has to obtain leave of the Court and, if granted, he can defend the suit with reference to such extent. However, if the defendant chooses to avail the remedy through the normal civil suit, he can do so because Rule 2 of Order XXXVII, C.P.C. Provides that "all suits upon bills of exchange, Hundis or promissory note may, in case the plaintiff desires to proceed hereunder, be instituted by presenting a plaint in the form prescribed". Hence the term in case the plaintiff desires to proceed hereunder gives an option to the plaintiff to avail the benefit of Order XXXVII, C.P.C. Where the form as well as the procedure is different than the normal civil suit but if he desires not to proceed under Order XXXVII, C.P.C. To file a civil suit under the normal procedure, he can do so. The provisions of the Negotiable Instruments Act shall still be applicable even if the suit is filed in the civil Court because the Negotiable Instruments Act is not dependent on Order XXXVII, C.P.C. Only. The provisions thereof are independent and can be availed even in the normal civil Courts. The presumption under section 118 of the Act, as stated above, is attached to every negotiable Instrument irrespective of the form of the plaint or the forum where the remedy was being sought.
6. The term "until the contrary is proved" in the beginning of section 118 indicates that it shall be the responsibility of the person, who claims that the instrument was executed without consideration, to prove the reasons why it was so executed. Once this is done, the onus is shifted to the holder of the instrument. In a case reported in PLD 1974 Notes 38, it was held that under section 118(a) of the Act presumption will arise in favour of a payee of a cheque that the cheque was issued for consideration. This presumption is statutory and mandatory and a person who wishes to dispel it must furnish proof to the contrary. In a case where a person, challenging the consideration of a Negotiable Instrument, does not adduce satisfactory evidence of absence of consideration or where no evidence is produced the statutory presumption under section 118(a) comes into play to the effect that the Negotiable Instrument was made or drawn for valid consideration.
7. In this particular case, unfortunately the defendant/petitioner merely responded to every sentence, question and suggestion in the negative in the pleadings as well as in the evidence and that is why the plaintiff/respondent had separately filed a criminal complaint of perjury against him because during the flow of negation of everything, he has denied even those facts which needed no proof. Even the existence of a bank in a particular area is denied whereas it is proved that he was maintaining an Account in the said Bank. The law helps a person who controverts the controversies but the B one who denies everything, looses the credibility.
8. The respondent/ plaintiff has sufficiently proved through the evidence of Bank officials presenting the record of the bank, whereby all the averments contained in the plaint were proved.
The petitioner was primarily responsible for proving the facts that either the cheques were without consideration, or that the Account did not belong to him, or that the cheques did not bear his signatures or that the cheques were obtained under coercion, fraud etc. However, by the blank denial of all the facts, and that too in his solitary statement, he has unfortunately failed to discharge the onus which was primarily placed on him and secondarily shifted to him. Both the Courts have rightly decided the matter and the learned first Appellate Court has adequately penalized the present petitioner by cost in each of the case.
9. Both these revision petitions are without force which are dismissed with costs.
Revision .