' ABDUL SHAKOOR PARACHA, J.---This regular first appeal impugns the judgment and decree dated 9-6-2000 passed by Additional District Judge, Faisalabad, through which the suit for recovery of Rs,1,10,000 under Order XXXVII, C.P.C. By Muhammad Nawaz respondent-plaintiff against Muhammad Hussain appellant-defendant was decreed.
2. Brief facts of the case are that suit for recovery of Rs, 1,10,000 under Order XXXVII, C.P.C. Was filed by respondent-plaintiff against the appellant. It was stated in the plaint that appellant-defendant had made a request for a loan of Rs,1,50,000 on the basis of friendship. The amount was not returned and the matter was being deferred on one pretext or the others. Eventually the appellant signed executed and handed over three cheques of Rs,10,000 which could not be encashed. In the same manner, cheque dated 15-3-1994 of National Bank of Pakistan No,225/R.B., Faisalabad, Branch was issued which also was not encashed. Thereafter the respondent-plaintiff filed the suit for recovery of the amount.
3. In pursuance of the notice under Order XXXVII, rule 2, C.P.C., the appellant-defendant appeared in Court and filed application for permission to defend the suit. It was contended that plaintiff- respondent deals in the business of purchasing and selling out the vehicles on easy instalments.
He also rent out the vehicles. The case of the appellant-defendant was that one Khalil Ahmad, dear relative of the appellant purchased bus bearing Registration No,8584-FDO on easy instalments and the schedule of payment was arrived at between the parties on the basis of monthly instalments of Rs,10,000. The said relative of the appellant-defendant namely Khalil Ahmad regularly paid the instalments, whereas, the respondent-plaintiff did not issue the receipts. It is so happened that the instalment for the month of September, 1993 was not paid, whereupon, the respondent-plaintiff snatched the bus from Khalil Ahmad. On the intervention of respectables including the appellant-defendant, the said vehicle was returned by the respondent-plaintiff to Khalil Ahmad subject to the payment of Rs,1.0 lac (one lac) i.e, alleged amount of repair spent by the respondent-plaintiff along with interest of Rs,60,000 and in this way another amount of Rs,1,60,000 was agreed to between them to be paid besides the previous amount of price of the bus being paid by Khalil Ahmad through instalments. It was further stated that the appellant- defendant stood surety for the said amount of Rs,1,60,000. It was further stated that Khalil Ahmad paid amount from October, 1993 to January, 1994 against receipts. Payment of instalments for., the month of October, 1993 was made through the appellant-defendant for which respondent-plaintiff issued receipt and returned the cheque of Rs,10,000 but the respondent-plaintiff did not issue receipt for the rest of the payment. Another cheque for the month of November, 1993 was also returned by the respondent-plaintiff. The respondent-plaintiff once again snatched the vehicle on 21-1-1994 from the said Khalil Ahmad and the same was sold out through some other person of Okara District. On the intervention of certain respectable people, an agreement was reached between the parties with their mutual consent and respondent was entitled to receive the balance amount as he had sold out the vehicle to some other person of his own choice. In these circumstances, the cheques relating to the month of December, 1993 and January to March, 1994 remained with the respondent-plaintiff which were given back to the appellant-defendant. The application for grant of permission to defend the suit was allowed by the trial Court vide order dated 4-10-1994. Written statement was filed by the appellant-defendant. From divergent pleadings of the parties, trial Court proceeded to frame the following issues:--
(i) Whether the suit is barred under Order II, rule 2, C.P.C.? OPD.
(ii) Whether the suit is bad for non-joinder of necessary parties Khalil Ahmad, if so, its effect? OPD.
(iii) Whether the defendant received Rs, 1,40,000 from the plaintiff and issued the cheque for Rs, 1,10,000 along with two other cheques for Rs,10,000 each for the payment of the disputed amount and the aforementioned cheque of Rs,1,10,000 has been dishonoured? OPD.
(iv) If Issue No,3 is proved in affirmative, whether the plaintiff is entitled to recover the Alit amount from the defendant? OPD.
(v) Relief.
4. Burden of proving Issue Nos.Iii and iv was on the plaintiff-respondent. The plaintiff-respondent in order to discharge the onus of prove of this issue produced P.W.1 Muhammad Rasheed, P.W.2, Liaqat Ali and himself appeared as P.W.3. Disputed cheque Exh.P.1 was presented for encashment at the Bank but the same was not encashed and the slip in this regard Exh.P.2 was produced in Court.
5. On the other hand, the defendant-appellant produced Muhammad Rafique D.W.1, Munir Ahmad D.W.2, Khalil Ahmad D.W.3, and himself appeared as D.W.4. Exh.D.1 is a photocopy. Learned trial Court did not rely on receipt Exh.D.1 and - rejected the plea taken by the defendant-appellant regarding purchase and selling of vehicle/buses by Khalil Ahmad, relative of the appellant, and also did not agree with the contention of the appellant-defendant that he , stand surety for re payment of the amount. Trial Court relied on the admission of the appellant-defendant regarding execution signed and handing over of the disputed cheques to the respondent-plaintiff and its non-encashment from the bank. Consequently, findings on Issue Nos.Iii and iv were recorded in favour of, the respondent-plaintiff. The Court also recorded the finding of Issue No,i against the appellant -defendant and held that the suit is not barred under Order II, rule 2, C.P.C. Regarding Issue No,ii, the trial Court observed that, "though Khalil Ahmad was a necessary party, but the suit cannot be dismissed for non-joinder of the parties." On the basis of Issues Nos.i, iii and iv, trial Court proceeded to decree the suit of the respondent-plaintiff. Hence this appeal.
6. Learned counsel for the petitioner contends that the appellant-defendant was able to prove his case set up in the written statement by producing the photocopy of the receipt Exh.D.1 coupled with the oral evidence consisting of Muhammad Rafique D.W.1, Munir Ahmad D.W.2, and Khalil Ahmad D.W.3, therefore, the respondent-plaintiff was not entitled for the decree. On the other hand, learned counsel for respondent contends that the execution and signature of the cheque Exh.P.1 and its non-encahsment through Bank slip Exh.P.2 has been admitted. The appellant could not substantiate his plea of standing surety of one Khalil Ahmad, therefore, no interference is called for in the judgment and decree granted by the trial Court.
7. I have heard the arguments of learned counsel for parties and perused the record with their assistance.
8. Before I proceed to discuss and decide Issue Nos.Iii and iv, I would say that Issues Nos.i and ii were rightly decided against the appellant, because the suit was not barred under Order II, rule 2, C.P.C. As there was no earlier suit filed by the plaintiff-respondent which could have included the whole relief. Though Khalil Ahmad was a necessary party, but the suit could have not been dismissed for non-joinder of necessary party in view of Order. I, rule 9, C.P.C.
9. This brings me to discuss Issues Nos.Iii and iv. The execution of the cheque Exh.P.1 which was presented at Bank by the plaintiff-respondent but the same was not encashed and the slip in this regard is Exh.P.2 are admitted. However, the case of the appellant-defendant was that respondent was dealing in business of sale/purchase and gives vehicles on rent. To this effect, he stated that bus bearing Registration No,8584/FDO was sold to Khalil Ahmad, relative of the appellant- defendant on easy instalments and certain cheques were issued. No documentary proof of the sale of bus bearing Registration No,8584/FDO to Khalil Ahmad, relative of the appellant-defendant, on instalments has been produced. There is force in the contention of the learned counsel for respondent-plaintiff that the photocopy of Exh.D.1 does not show that the same pertains to the instalments to be paid by Khalil Ahmad, relative of the appellant-defendant, which was paid through the appellant. Under section 118 of the Negotiable Instruments Act, the presumption is that every negotiable instrument was made or drawn for consideration. This presumption has not been dislodged by the appellant-defendant through any cogent reason. The trial Court rightly relied on the evidence produced by the plaintiff-respondent and proceed to decree the suit through the impugned judgment which need no interference. Resultantly, this appeal fails and is dismissed.
9-A. Parties to bear their own costs.