' MIAN SAQIB NISAR, J.---The suit for the recovery filed by the respondent under the provisions of Order XXXVII, C.P.C. Against the appellants, on the basis of a cheque, after grant of leave to them and holding the trial, has been decreed by the learned Addl. District Judge/Trial Court, vide judgment and decree dated 29-6-2006. Hence, this appeal.
2. Brief facts of the case are:-- ' That on 18-3-2004, the respondent brought a suit for the recovery of an amount of Rs,30,00,000 against the appellants, claiming that Shaukat Ali, their predecessor in-interest, was his real nephew (brother's son), who intended to establish Mubarak Floor Mills for which, he needed money and thus requested the plaintiff/ respondent for a loan of Rs,30,00,000 (no date of the grant of loan or the timeframe when the Mill was being established has been given in the plaint). It is, "however, mentioned in paragraph No,5 of the plaint that when the Mill started functioning (again no date or period mentioned), the respondent demanded the return of the loan amount, but Shaukat Ali was reluctant; on repeated requests/demands, Shaukat Ali gave the respondent/plaintiff a cheque bearing No,10477533 dated 20-3-2001, amounting to Rs,30,00,000 from his Account No,1502-21 maintained in Muslim Commercial Bank Dajkot Road Branch, Faisalabad, the cheque when presented, was dishonoured by the Bank on 21-3-2001, therefore, the respondent through respectable kept on demanding the money from Shaukat Ali, who in the meanwhile fell ill and expressed his inability in this behalf; during this period, Mubarak Floor Mills also closed down and Shaukat Ali ultimately died on 30-3-2003; the suit as mentioned above, was brought on 18-3-2004 almost a year after the death of Shaukat Ali and about two days before the expiry of the limitation (as per the date mentioned on the cheque). The appellants contested the matter and denied that Shaukat Ali had taken any loan from the respondent/ plaintiff; they asserted that the cheque does not bear the deceased's signature and it was never issued. In paragraph No,5 of the written statement, it is however, mentioned that the plaintiff has received back the amount of Rs,21,5000, which he invested in Mubarak Floor Mills from Shaukat Ali. On account of the pleadings of the parties, the following issues were framed:--
(1) Whether the plaintiff has got no cause of action against the defendants? OPD
(2) Whether the plaintiff has concealed any facts? OPD
(3) Whether the defendants are entitled to recover special costs from the plaintiff? OPD
(4) Whether the plaintiff is entitled to the decree of Rs,30,00,000 under Order XXXVII, C.P.C. As prayed for? OPP
(5) Relief.
' The respondent/plaintiff in order to prove his case on issue No,4 examined four witnesses. P.W.1 Muhammad Aslam Rana, Officer Grade-II, Muslim Commercial Bank Dajkot Road, Faisalabad brought the record of the Account pertaining to the cheque in question and stated that the Account was in the name of Mubarak Floor Mills, whose proprietor was Shaukat Ali; he produced the cheque Exh.P-1, dishonoured slip Exh.P-2 and Exh.P-2/1, leasing agreement Exh.P-3, specimen signature of Shaukat Ali Exh.P-4, account opening form in the name of proprietor Shaukat Ali Exh.P- 5; certified copy of the Token No,18 dated 21-1-2001 Exh.P-6, its attested copy Exh.P-6/1, balance sheet of the account Exh.P-7, letter dated 10-6-2005 about his appearance as a witness and the permission from the concerned Bank Manager Exh.P-8. In the cross-examination, he stated that he has not undertaken any course of handwriting examination, therefore, he cannot say if the signature upon the cheque belongs to Shaukat Ali or not. P.W.2 is the plaintiff/respondent himself who has deposed in lines with the case set out in the plaint. However, an important part of his examination-in-chief needs to be incorporated as under:-- {{URDU TEXT}} ' It is further deposed that we (Panchayat) had gone to Shaukat Ali even thereafter and demanded money, but he ultimately died on 30-3-2003 without returning it. In the cross-examination, he has admitted to be income tax assesse, but stated that he has no knowledge, if the amount of Rs,30,00,000 as the loan to Shaukat was mentioned in the income tax return for the relevant year; he does not recall as to when Mubarak Floor Mills started functioning, but then said it to be the year, 1997-1998; he stated that on 21-3-2001 he went to Shaukat Ali along with Riaz Ahmed and Basharat; Riaz Ahmed is his first cousin whereas Basharat is his son. Riaz Ahmed has appeared as P.W.3; he has stated that while Mubarak Floor Mills was under construction, Shaukat Ali needed some money and an amount of Rs,30,00,000 as loan by the respondent was given to him in his presence; when the Mill was established, the respondent asked him (Shaukat Ali) for the return of money, but it was not repaid and therefore, the cheque in question was issued. In the cross-examination, he has admitted that certain writings on the cheque are in different inks; he further stated that Rs,20,00,000 was paid on 4-4-1999 while Rs,10,00,000 on 25-4-1999. P.W.4 Basharat Saeed is the son of the respondent and has deposed pursuant to the case of the respondent.
3. Against the above, the appellants have produced three witnesses. D.W.1 is Muhammad Saleem, who has stated that Shaukat Ali had never borrowed any money from the respondent, rather they had joint business. D.W.2 Muhammad Amin, has also testified that no amount was taken by Shaukat Ali from the respondent as a loan; D.W.3 is Muhammad Asif, son of Shaukat Ali and has stated in lines with the defence. The learned trial Court, as mentioned earlier, has decreed the suit.
4. Learned counsel for the appellants has argued that there is no independent evidence on the record that the respondent has given the suit amount as a loan to Shaukat Ali; the respondent has not been able to substantiate his financial position and capacity to pay such a huge amount as the loan; the cheque has not been signed by Shaukat Ali; the amount in words and figures as also the date on the cheque Exh.P-1 is not in the writing of Shaukat Ali and inks of the signature and the pens are also different; contrary to the case of the respondent (plaintiff) set out in the plaint and also his own statement; P.W.2 has deposed that the loan amount was paid in two tranches and has also given specific dates i,e, 4-4 1999 and 25-4-1999; in the cross-examination of the plaintiff, he stated that the Mill started functioning in 1997-1998 and the amount was paid for its establishment, but from the statement of P.W.2 it is belied, [because the time, when calculated from the dates of the two tranches as deposed by P.W.2, the Mill would have been closed as it could not be run for more than six months after its establishment, therefore, the entire story that the amount was paid for the purpose mentioned in the plaint stands knocked out]; in the plaint, it is categorically stated that the respondent had approached Shaukat Ali along with respectables for the return of the suit amount, but no independent person has been examined in this behalf; Basharat, who allegedly went to Shaukat for the return of the amount, is real son of the respondent while Riaz Ahmed P.W.3 is his first cousin; the suit had not been filed in the lifetime of Shaukat Ali, rather after his death and that too only two days before the expiry of the period of limitation. From all the above, it is argued that the respondent has failed to prove his case resultantly, the judgment and decree of the Court below cannot sustain and the suit is liable to be dismissed.
' When confronted with the presumption of section 118 of the Negotiable Instruments Act. 1881, it is submitted that when the plaintiff has failed to prove his source and capacity to advance the loan and also does not sue the alleged borrower in his lifetime, the said presumption stands rebutted. In this behalf, reliance has been placed on the judgments reported as Salar Abdur Rauf v. Mst. Barkat Bibi 1973 SCMR 332, Mahmood Hassan Ashraf v. Shakil Ahmad 1973 SCMR 595, and Sundarammal v.
Subramanya Chettiar and others AIR 1916 Madras 278. The learned counsel for the respondent has laid down the mainstay on his case on the presumption of section 118 of the Act ibid and has relied upon the judgments reported as Syed Aijaz Hussain v. Syed Abdul Azeem 2008 CLD 51, Shell Pakistan Ltd. v. Aero Asia International (Pvt.) through Chief Executive and another PLD 2008 Kar. 429, Ali Muhammad Shah v. Ijaz Hussain Shah 2007 MLD 1619, Muhammad Aziz-ur-Rehman v. Liaquat Ali 2007 CLD 1605, Muhammad Aziz-ur-Rehman v. Liaquat Ali 2007 SCMR 1820, Muhammad Ashraf v.
Akhlaq Sheeda 2007 CLD 267, Muhammad Arshad and another v. CitibankN.A. Al-Falah Building, Lahore 2006 CLD 1011, Muhammad Akhtar v. Zahar Khan 2006 CLD 737, Sheikh Muhammad Javed Anwar v. Muhammad Ashraf 2006 CLD 107, Muhammad Hussain v. Muhammad Nawaz 2006 YLR 2107, Syed Kausar Abbas Shah v. Sardar Khan 2005 YLR 3321, Sheikh Muhammad Ayub v.
Muhammad Yousaf 2005 CLD 588, Muhammad Akbar v. Sheikh Abdul Shakoor 2004 MLD 951, Jam Hameed Shahid v. Liaqat Ali 2004 CLC 219, Messrs Karachi Bonded Stores Limited v. Trustees of the Port of Karachi and others 1999 MLD 3214, Best Foods (Private) Limited v. Tabani Corporation 1991 CLC 1897, Syed Haider Aabdi v. Syed Javed Aabi 1986 MLD 2298, Fine Textile Mills Ltd. Karachi v. Haji Umar PLD 1963 SC 163, Shell Pakistan Ltd. Through Attorney v. Aero Asia International (Pvt.) Ltd, through Chief Executive 2008 CLD 996, Muhammad Aziz-ur-Rehman v. Liaquat Ali PLD 2007 SC 1542, Adil Jamshed v. Muhammad Ubaidullah 2005 CLD 1840 Peshawar, Naseer Ahmad v. Mehr Akhtar Abbas -2005 YLR 3021 Lahore, Hamid Shehzad Managing Director v. Muhammad Sohail Saeed 2005 YLR 3226 Peshawar, Malik Muhammad Amin v. Zahid Mehmood 2005 CLD 982 Lahore, Messrs Mach Knitters (Pvt.) Ltd. v. Allied Bank of Pakistan Ltd. 2004 CLD 535, Irfan Fazal v. Zahid Iqbal 2004 CLC 384, Muhammad Ajmal Khan v. United Bank Ltd. 2004 CLD 1577, Kausar Saeed v. Syed Wajahat Hussain 2003 CLD 272, EFU General Insurance Ltd. v. Messrs Security and Management Service (Pvt.)
Ltd. 2002 CLD 107, Asif Nadeem v. Bexshim Corporation 2001 CLC 653, S.K. Abdul Aziz v. Mahmood- ul-Hassan 2000 CLC 1967, Khalid Mukhtar v. Sadiqa Tasneem 1996 CLC 741, Khalil-ur-Rehman v.
Muhammad Shafi 1993 MLD 1144, State Associates v. Farben Industrial Development S.PA 1992 MLD 1007, Sughiran Begum v. Qadir Bakhsh PLD 1986 Quetta 232, Industrial Mining Enterprises Karachi v.
Industrial Mineral Corporation Ltd. 1985 MLD 181 and Karim v. Zikar Abdullah 1973 SCMR 100. However, when specifically questioned, it is admitted by the respondent's counsel that the matter of presumption shall be determined by the Court on the preponderance of the complete evidence on the record.
5. Heard. Section 118 of the Negotiable Instruments Act, 1881, does not envisage a conclusive presumption about the drawing, consideration etc. Of the negotiable instrument, rather without any fear of contradiction, it can be held to be rebuttable in nature and this is so clear and obvious from the expression used in the section i,e, "until the contrary is proved". The question, which shall thus arises for the consideration is that where a claim is propounded on the basis of a negotiable instrument, is it necessary and imperative in all such cases that the defendant should prove in the negative, that has not drawn the instrument and that it is without consideration or it is for the plaintiff to discharge the initial burden of proving his B case in this regard, especially when the plaintiff has undertaken to prove that the negotiable instrument (cheque) has been duly executed for the consideration by Shaukat Ali; not only that issue No,4 has been framed in this case, which has placed the onus in this behalf upon the respondent/plaintiff, rather he himself led evidence to prove the payment of the money through two witnesses P.W.2 and P.W.3, his own statement and the statement of P.W.4, Bank Manager, therefore, as per the judgment reported as Salar Abdur Rauf v. Mst Barkat Bibi 1973 SCMR 332, the respondent/plaintiff is precluded in law to urge in this case that it was for the respondent to prove to the contrary.
7(sic). Without prejudice to the above, it may further be added that the expression "until the contrary is proved" is couched in the negative and the proof of a "negative fact" has its own limitations and bounds and the law in this behalf does not recognize and require that a litigant should imperatively give the positive evidence of a "negative fact"; this is inconceivable under the law of the proof of a fact. However, the above rule is subject to certain exceptions, where for example that the defendant through positive evidence shall be able to substantiate that on a given date he was not at the place where the execution of the instrument is alleged or the plaintiff has no capacity or the mean to grant the loan, or he or his relative met with some accident or were seriously ill, hospitalized or operated upon which would preclude the execution of the instrument; these shall constitute an apt illustration of the proof "to the contrary" and may be held to be one category of the cases falling within the purview of section 118; however, the second category, which is perceived by the said section is when after the conclusion of the trial, on the basis of the complete evidence on the record from which ever side it is adduced, that the Court shall be required to determine if the execution and consideration, etc. Is proved to be contrary or otherwise.
It may be relevant to mention that of course, it shall be permissible in law to prove "to the contrary" by means of cross-examination upon the witnesses of the plaintiff, that the instrument was not drawn and the consideration never passed. In our view, the present case falls in the second category and thus, it is on the basis of the total evidence on the record by applying the rule of preponderance (of the evidence) and the possibility that this lis should be decided.
7. In this behalf, the relevant features of the case and the important aspects of evidence should be highlighted; the suit has not been filed within the life time of Shaukat Ali; explanation given in the plaint and in the evidence about his promises to re-pay the amount and that on account of his illness he expressed his inability, has not been established through independent evidence; no written agreement has been produced on the record or even alleged to have been executed between the parties and despite close relationship as argued by the respondent, we find that it is quite improbable that such a substantial amount shall be given by the plaintiff only on the basis of mutual trust; no date, month and even the year of the granting of loan has been given in the plaint; however, it is vaguely mentioned that it was during the time when the Mill D was being in the process of creation; the plaintiff P.W.2 in his cross-examination has stated that the Mill started functioning in 1997-1998; while P.W.3 has stated that the money was paid through two tranches i,e, 4-4-1999 and 25-4-1999, which means that it is after the establishment of the Mill; this has serious reflection upon the motive and the very purpose of the alleged loan. Considering these two statements along with the statement of D.W.3, who in the examination-in-chief stated that Mubarik Floor Mill was purchased in the year, 1998-1999, its building was then erected, it is after installing machinery, the. Mill functioned but closed down about 7/8 months thereafter because of the losses. This part of the statement has not been subjected to the cross-examination by the plaintiff, and it is settled law that a fact deposed in the examination-in-chief if not , cross-examined, shall be deemed to have been admitted; the above aspect of the evidence has belied the execution and the consideration of the cheque; besides, the capacity of the plaintiff to pay the amount was under challenge but he has not able to establish that in the year, 1997-1998, he had such a substantial amount to pay to Shaukat All as loan; he though admitted to be the income tax assessee but expressed lack of knowledge if the amount was declared in his return; not only in the plaint but also in his own statement while appearing as P.W.2 he has mentioned that the respectables (Punchaiat) had gone to Shaukat Ali for the return of the money on two occasions, but no independent person in this behalf has been examined; his son, cousin and brother-in-law (P.W.3) have no relations with Shaukat Ali and they cannot be considered to be those respectables, who in the ordinary parlance can be said to constitute Punchaiat; the cheque has not been filled up by Shaukat Ali; name of Saeed Muhammad, the amount in words and figures as also the date are not stated to be in his hand writing; who has filled up it, is not proved on the record; the signatures of Shaukat Ali on the cheque have not been asked for the opinion of expert by the plaintiff; the Bank officer is unable to state, if these signatures belongs to Shaukat Ali or otherwise; the exact dates, which have been given by P.W.3 i,e, 20,000,00 was .Paid on 4-4-1999 and Rs,10,000,00 on 25-4-1999, are not specifically mentioned in the plaint or even so specified in the statement of P.W.1; there is no explanation about this very conspicuous omission; this quality of evidence on the record in our candid view has excluded the case from the realm of the transaction as has been contemplated by the provisions of section 118 of the Negotiable Instruments Act, 1881; the case of the respondent that the decision of the matter must be exclusively founded on the presumption of the section cannot be accepted and all the judgments cited in this behalf are distinguishable on their own facts. We find that in the circumstances of . The case, the presumption stands repelled and the plaintiff has failed to prove his case; therefore, this .Appeal is allowed, the judgment and decree of the learned trial Court is set aside with the result that the suit stands dismissed.