MAULVI ANWARUL HAQ, J.--- On 22-5-2002 the appellant filed a suit against the respondent for recovery of Rs,11,00,000 under Order XXXVII, C.P.C. According to the plaint, the appellant owns Kinoo garden and the respondent obtained a contract for plucking the fruit for the year 2001-02. The total amount was settled at Rs,32,00,000. He issued a cheque, dated 20-5-2001 for Rs,8,00,000 and another cheque in the sum of Rs,3,00,000 payable on 10-6-2001. He deposited the said cheques in his account and he was assured that the amount has been credited. In March, 2002 he found that the said cheques have not been encashed and the amount has not been credited. He then deposited the cheque in another account in Habib Bank Limited and these were dishonoured upon presentation. Accordingly he prayed for a decree in the said amount. We may note here that initially Muslim Commercial Bank was arrayed as defendant No,2 in the suit but was deleted vide order, dated 2-7-2002. The respondent was served in the manner prescribed by law. He put in appearance and applied for leave to appear and to defend. The, application was allowed with the consent of the appellant vide order, dated 2-6-2003. He filed a written statement wherein he admitted the factum of the said contract, the total lease amount payable by him and the issuance of the cheques. He took the plea that the amount of the cheques has been paid to the appellant and that is why he did not present the same on the dates mentioned in the cheques. He further stated that after the completion of contract, he paid Rs,18,00,000 to the appellant through two cheques which were duly encashed. He then stated that he had paid the entire amount of the said two cheques mentioned in the plaint in various forms (not stated in plaint). Following issues were framed by the learned trial Court:---
(1) Whether the plaintiff is entitled to recovery Rs,11,00,000 from the defendants on the basis of cheques?OPP.
(2) Whether the plaintiff has no cause of action to file this suit?' OPD.
(3) Whether the plaintiff is estoppel by his words and conduct to file this suit? OPD.
(4) Whether the suit is mala fide and defendants are entitled to recover special costs under section 35-A C.P.C.? OPD.
(5) Relief.
Evidence of the parties was recorded. Issue No,1 was found in favour of the respondent. Issue No,2 was not decided. Issue No,3 was answered in favour of the respondent in view of the findings on issue No,
1. Issue No,4 was not pressed by the, respondent. The suit was accordingly dismissed by a learned Additional District Judge, Chiniot, vide judgment and decree, dated 22-11-2005.
2. Learned counsel for the appellant has taken us through the contents of the application filed by the respondent on 27-8-2002 for leave to appear and to defend the suit to urge that a totally inconsistent plea was taken in the written statement and that too has not been proved at all. The precise contention is that the plea that the amount of the cheques had been paid to the appellant has not been proved. Learned counsellor the respondent, on the other hand, contends that the conduct of the appellant in the matter of presentation of the cheques in question and his remaining quiet would constitute strong circumstantial evidence of the truth of the plea taken in the written statement as to the payment of the said amount.
3. We have gone through the records of the learned trial Court, with the assistance of the learned counsel for the parties. We find that the plea taken therein by the respondent was that he is running a Filling Station. He had been obtaining the contract of plucking the fruits of the garden of the appellant for quite some time whereas the appellant had been purchasing petrol, diesel and mobil oil, etc. From his Filling Station and the amounts due to each other were adjusted upon a rendition of accounts. He obtained the contract for the year 2001-02 for Rs,32,00,000 and issued the said cheques. The appellant purchased petrol, etc. Of the value of Rs,11,55,960. On his demand of the said amount, the appellant has filed the suit. We do find that the plea taken in the written statement is not consistent with the said application. However, since no objection was raised to the contents of the written statement before the trial Court, we do not find any grounds not to read and consider the written statement.
4. Needless to State that the issuance of the cheques and the consideration not only stands proved but admitted. The burden was upon the respondent to prove that he had paid the amount of the cheques Exh..P.1 and Exh.P.2 to the appellant. He has appeared as D.W.1. He stated that the contract was for Rs,32,00,000 and he gave to the appellant the cheques Exhs.P.1 and P.2. He then proceeded to state that these cheques were issued just as a guarantee and it was agreed that he will make payment in cash to the appellant when he is able to do so and on payment of the entire amount, the cheques were to be returned to him. He then gave the following detail of the amounts paid by him against the said cheques:---
(i) Cheque for Rs,2,00,000.
(ii) Traveler Cheque for Rs,1,00,000.
(iii) Rs,2,50,000 in cash.
(iv) Rs,50,000 in cash.
(v) Rs,3,66,000 credit on account of purchase of petrol/diesel.
(vi) Rs,3,83,315 in cash at the end of the season.
This makes a total of Rs,13,49,315. He stated that no receipt was issued for the said amount. He was unable to produce any sale records of his Filling Station. He did not remember the dates of any of the said payments. It will further be evident that there is not a word as to why did not he demand back the cheques when he made the said payment. There are no particulars of the said cheques or traveler cheque and, of course, no effort has been made to prove the payment through the said instruments. Apart from this, Aziz Ahmad appellant appeared as P.W.2 and not a single suggestion regarding any of the said payment was given to him. It was not at all suggested that he had been paid in the manner later stated by the respondent. We, therefore, do not find any evidence of .The payment of the amount of cheques or any other amount stated by the respondent on the record.
5. This brings us to the contention raised by the learned counsel for the respondent. Aziz Ahmad appellant appeared as P.W.2. He stated that the total lease amount payable was Rs,32,00,000. The cheque Exh.P.1 was for Rs,8,00,000 while cheque Exh.P.2 was for Rs,3,00,000. Another cheque, dated 2-2-2002 was issued for Rs,10,00,000 and the 4th cheque was issued on 15-3-2002 for Rs,80,00,000.
The latter two cheques were encashed and the remaining amount of Rs,3,00,000 was paid in cash by the respondent. He stated that the cheques Exhs.P.1, and P.2 were deposited by him in his account with Muslim Commercial Bank respectively on 12-5-2001 and 5-6-2001 against receipt Exh.P.5. On 15-3-2002 he presented his pass Book Exh.P.6 and it was noted that the amounts of the cheques Exhs.P.1 and P.2 have not been received. The cheques were handed over to him and then he presented the same through Habib Bank Limited but were dishonoured vide memo. Exh.P.3. The latter part of the testimony has been corroborated by Barkat Ahmad, an officer of Habib Bank Limited, Chanabnagar Branch, who appeared as P.W.1.
6. The respondent produced Hamid Ali, Manager Muslim Commercial Bank Lalian Branch as D.W.2.
He stated that the cheque Exh.P.1 (dated 20-5-2001 for Rs,8,00,000) was presented on 4-6-2001 and was referred to Drawer on the same date. Regarding cheque Exh.P.2, he stated that it was not presented. In his cross-examination while stating that he was never posted in the said branch during May, 2001 to May, 2002, he admitted that the cheque Exh.P.1 as also Exh.P.2 bear the stamps of Muslim Commercial Bank Lalian branch and that such a stamp is always affixed when the cheques are deposited for payment into the account. He also admitted that cheques Exhs.P.1 and P.2 were received through Habib Bank Limited Lalian Branch. He also admitted that receipt Exh.P.5 pertains to the cheque Exh.P.2.
7. Having examined the said statements, we find that the plea taken by the appellant in the plaint qua the presentation and representation of the said cheques have not been sufficiently rebutted and rather were corroborated in some material particulars by the said witness produced by the respondent. Be that as it .May, the fact remains that there is not an iota of evidence on record that the amount of the said cheques was paid by the respondent to the appellant.
8. Having, thus, examined the records, we reverse the findings of the learned trail Court on Issues Nos.1 and 3 and answer the same in favour of the appellant, The R.F.A. Is allowed and the suit filed by the plaintiff-appellant is decreed in his favour as against the defendant-respondent with costs throughout.
9. The records of the learned trial Court be remitted back immediately.