' ABDUL RASOOL MEMON, J.---This appeal has been preferred against the judgment and decree dated 5th July, 2010 passed in Summary Suit No,1 of 2008 by IIIrd Additional District Judge, Karachi West in favour of the respondent whereby the suit filed by the respondent was decreed holding the appellant liable to pay Rs,14,35,792 plus profit as per Bank rate.
2. The relevant facts of the case are that the respondent/plaintiff filed suit stating therein that from September, 2004 he with financial support of his father M. Farooq Akhtar and his friends, entered into business relations with the appellant/defendant for import of computer accessories for local trading business; that the respondent made investment in the business and through bank channels he transferred different amounts to the business Account of the appellant titled as Messrs Al-Hamd Traders which comes to Rs,1470,000 and that the profit earned on such investment comes to Rs,93,382; that when the respondent approached the appellant for return of his principal amount along with profit accrued thereon, latter was found reluctant to return the same despite persistence requests. The appellant however delivered through his brother a cheque bearing No,MKC 0575727 dated 26th July, 2007 of Account No,160721 Habib Bank AG Zurich, M. W, Tower Branch, Karachi of Rs,14,35,792; Subsequently, on presentation of the said cheque the same was returned by the Bank with endorsement that "present again" and when -the cheque was presented again it was returned with the remarks that the said account is closed and as such the cheque could not be encashed. Consequently, the respondent lodged F.I.R. No,251 of 2007 with Police Station Kharadar Karachi on 29th October, 2007 under section 489-F, P.P.C. The appellant was therefore arrested and later released on bail by the concerned Magistrate subject to furnishing surety in the sum of Rs,300,000. However, the grievance of the respondent for getting the requisite amount of money stood not redressed since the appellant refused to pay the amount. The respondent filed a summary suit before IIIrd Additional District Judge, Karachi West for recovery of the amount along with profit accrued thereon.
3. The appellant after leave to defend filed his written statement wherein he raised preliminary objection as to the territorial jurisdiction of the learned District Judge, Karachi West, challenged the maintainability of the suit and denied the liability of any amount payable to the respondent/plaintiff. As regards the cheque in question the defence was taken that it was a fabricated and bogus document and that the appellant had already closed the said account.
4. On pleading of the parties trial Court framed the following issues:--
(1) Whether the plaintiff paid/deposited in the account of defendant sole proprietor of Messrs Al- Hamd Traders Rs,14,70,000 through cheque and cash?
(2) Whether the defendant sole proprietor of Messrs Al-Hamd Traders issued a Cheque No,MKC- 0575727 dated 26th July, 2007 of Rs,14,35,792 to the plaintiff after the settlement of dispute?
(3) Whether the cheque No,KMC-0575727 dated 26-7-2007 was dishonoured?
(4) Whether the defendant sole proprietor of Messrs Al-Hamd Traders knowingly that his current A/C No,160721 has already been closed issued a Cheque No,MKC-0575727 to play fraud with the plaintiff which cheque was dishonoured?
(5) Whether the defendant is liable to pay the amount Rs,14,35,792 to the plaintiff?
(6) Whether the subject cheque is not issued by the defendant and so also does not bears the signature of the defendant?
(7) Whether the subject cheque is fabricated, manipulated by forged signature of the defendant?
(8) What should be the decree/order?
' After recording the evidence of both the parties and hearing the arguments, the Trial Court answered the above issues in favour of respondent/plaintiff and decreed the suit directing the appellant to pay Rs,14,35,792 plus profit accrued thereon as per Bank rate.
5. Learned counsel for the applicant has argued that cause of action accrued to the respondent within the territorial limits of Karachi South, as the cheque was issued by the appellant within the limits of said district and so the Bank where the said cheque was presented and dishonored was also within the territorial jurisdiction of Karachi South hence learned Court of District West wrongly assumed the jurisdiction and decreed the suit illegally. He has further argued that the respondent did not put himself in the witness box to avoid statement on oath and instead examined his attorney; that the trial Court ignored the' material fact viz. The handwriting in which the amount was written in figures and the handwriting in which the date of the cheque was differently written and was not one and the same; that in fact the cheque was given by the appellant to his elder brother Allah Bux Awan who had to give security to respondent, hence, the date was not written down on the cheque, which did not exist on the day when it was presented in the Bank since the appellant account on that day stood already closed. Learned counsel has urged that the respondent has failed to prove the consideration involved between the parties and the loan allegedly obtained by the appellant from the respondent had remained unproved; that the respondent lodged the F.I.R. No,251 of 2007 under section 489-F, P.P.C. Against the appellant who remained in jail therefore two remedies could not be availed in respect of one cause of action.
6. Conversely, learned counsel for the respondent has argued that the appellant carried on his business within the local limits of District Karachi West therefore under section 20 'of Civil Procedure Code the suit could be instituted where the defendant voluntarily resided or carried his business.
He has contended that examination of attorney was not fatal to the case of the respondent as was not challenged by the appellant before the trial Court. Moreover, the powef of attorney executed by the respondent in favour of his attorney namely Abdul Rasheed' was in accordance with law. He has further contended that issuance of cheque was neither denied by the appellant in his written statement nor in his evidence so also it was not denied in the facts mentioned in the memo of appeal therefore there was no need for examination of handwriting of the appellant. He has argued that after issuance of the cheque when it was presented before the Bank the same was returned with endorsement "present again" and when it was presented again it was returned with endorsement that the account was closed. The learned counsel has averred that the account was closed mala fide by the appellant to defeat and dishonor the cheque issued in favour of the respondent; that the consideration was admitted by the appellant in his cross-examination on which the trial Court answered relevant issue No,1 in affirmative. Lastly, he has contended that cheque in question was dishonored hence ingredients of section 489-F, P.P.C. Were attracted thus both civil as well as criminal remedies could be availed simultaneously. In support of his contentions he has placed reliance on the case of Haji SARDAR KHALID SALEEM v. MUHAMMAD ASHRAF and others (2006 SCM R 1192).
8. The point of territorial jurisdiction was raised by the appellant at the time of settlement of Issues before and the learned District Judge Karachi, West who while framing the Issues observed as under:-- "Mr. Mohammad Sharif, Advocate for the plaintiff and Hussain Bux Awan (Defendant) himself are present. Both sides have filed proposed issues. Two proposed issues filed by the defendant that (1) whether the honourable Court has territorial jurisdiction to proceed the matter and (2) whether from the contents of the plaint the suit to be filed before the Senior Civil Judge, (South) for rendition of account? Regarding the issue for territorial jurisdiction the defendant is living with the territorial jurisdiction of Karachi, (West) with the jurisdiction of this Court as far as suit to be filed before the Senior Civil Judge, Karachi (South) the present suit which is filed is summery suit.
9. From the above it is quite clear that the learned District Judge Karachi West has given a clear observation for assuming the jurisdiction. Before me nothing material was brought to establish as to how the observations so made were erroneous or for that matter if so, on what material basis it could be altered. Section 20, C.P.C. Provides that the suits not covered by sections 15 to 19, C.P.C.
Could be instituted in a Court within the local limits of whose jurisdiction the defendant or each of the defendants where there are more, actually and voluntarily resides or carries on business or personally works for gain, such defendants can be sued with the leave of the Court or the cause of action wholly or in parts arises. The illustration (b) of section 20, C.P.C. Reads as under:-- "(B) A resides at Murree, B at Lahore and Karachi. A, B and C being together at Bahawalpur, B and C make a joint promissory note payable on demand, and deliver it to A. A may sue B and C at Bahawalpur, where the cause of action arose. He may also sue them at Lahore, where B resides, or at Karachi, where C resides; but in each of these cases, if the non-resident defendant objects, the suit cannot proceed without the leave of the Court."
10. It is an admitted fact on record that the appellant in the title of the plaint has shown his residential address as Kasba Colony, Mangopir Road, Karachi, West and such leave has been granted by the trial Court at the time of framing of issues. Therefore, in view of stated factual and legal position, I am of the opinion that the appellant while carrying on his business and residing within the local limits of Karachi West could be sued within the local limits of District Court of Karachi West, which rightly assumed jurisdiction and could determine the controversy involved in the suit.
11. The appellant in his examination in chief before the trial Court had admitted that a sum of Rs,14, 70,000 had been deposited in his account vide original deposit slips, which were produced by the respondent. The respondent's attorney stated in his evidence that the said amount was deposited by the respondent. In his cross-examination the appellant has taken a plea that the said amount was deposited by his step brother Allah Bux in his account titled Alhamd Traders. He however produced no evidence nor referred to any evidence to show that the said amount of money was deposited by his brother Allah Bux. It is settled law that when a party/person who asserts or takes a plea in his defence the burden lies upon him to affirmatively prove the same. The appellant has not examined his brother or brought any evidence in support of his assertion, therefore, the appellant has failed to prove the aforesaid plea and the respondent has proved that the said amount was deposited in the account of appellant.
12. Now coming to the question if the relevant cheque stood dishonored, it may be stated that in his cross-examination the appellant admitted that he used to work under the name and style of Alhamd Traders, that the account at Habib Bank AG Zurich was in the name of Alhamd Traders and in his examination in chief the appellant has stated that cheque bore his signature so the amount mentioned therein, but made statement that the cheque was undated and account in Habib Bank Zurich was opened by him in the year 2004 which due to fall in business was closed by him in the month of October, 2005. He deposed that he handed over the cheque to his brother Allah Bux due to his need of money because he had to hand over the said cheque as security to someone else. In a case of issuance of cheque the question as to whether IC the same was issued without consideration or in the name of some specific person claimed by a party, the burden lies upon the party so claiming. In the instant case, the issuance of cheque and signatures on it are admitted and consideration is also admitted by the appellant. The appellant has taken a specific plea regarding delivery of the said cheque to his brother and having taken this plea it was incumbent upon him to have proved the same. The appellant has not examined any witnesses much less his step brother Allah Bux in whose name he has claimed to have issued the undated cheque, therefore, it is evident that he has failed in his assertions and the plea taken by him is not tenable.
After issuance of the cheque, closing the account on the part of appellant indicates that the purpose of closing the account was none else but only to defeat the claim of the respondent and to have the cheque dishonored.
13. So far as the contentions of the learned counsel for the appellant that the criminal and civil proceedings initiated against him being parallel proceedings cannot run together, in my opinion, it is well settled that the criminal proceedings and civil proceedings in the cases such as like the foretasted can be proceeded simultaneously. In this respect I am fortified by the case of Sardar Khalid Saleem (supra) wherein it is laid down that criminal proceedings are not barred in presence of civil proceedings and that civil and criminal proceedings can be preceded simultaneously.
14. In view of my above discussion, I am of the opinion that the judgment of the trial Court does not suffer from any misreading or non-reading of the evidence or misapplication of any provision of law. Therefore, the same is maintained and the appeal is dismissed.