' ALI BAQAR NAJAFI, J.---This appeal has arisen out of judgment and decree dated 30-4-2010, whereby a suit for the recovery of Rs,6,60,000 filed by the respondent under Order XXXVII, C.P.C. Was dismissed.
2. Brief facts giving rise to the filing of the present appeal are that the respondent filed a suit under Order XXXVII, C.P.C. For recovery of Rs,6,60,000 on the basis of cheque No,16919855 regarding Account No,2642-31 stating that he had paid the said amount as a loan in January, 2004 to the appellant in presence of witnesses, which he promised to repay in June, 2005. Upon expiry of the said period, the respondent ' contacted the appellant who issued the above said cheque with his signatures in presence of witnesses. The cheque (Exh. PA) so issued when presented was dishonoured' by the bank and the dishonour slip (Exh. PA/1) was issued. Meanwhile, the appellant was arrested in some other criminal case. The respondent, therefore, had to file a petition under sections 22-A/22-B, Cr.P.C. Before the Ex Officio Justice of the Peace, Chakwal where he appeared on 18-7-2006 in police custody and admitted to have issued the said (cheque, whereafter the concerned S.H.O. Was directed to register the said criminal case. Consequently, F.I.R.
No, 247 dated 8-8-2006 under section 489-F, P.P.C. Was registered at Police Station City, Chakwal.
The appellant was tried and on 23-2-2007 was convicted, whereafter he filed an appeal and the respondent also preferred a revision petition.
3. In the said suit, the appellant filed an application for leave to defend, which was accepted on 3- 10-2009, whereafter he filed written statement and out of pleadings of the parties, the following issues were framed:-- ISSUES
(1) Whether the defendant borrowed an amount of Rs,6,60,000 from the plaintiff in January 2004 and issued Cheque No 16919855 worth Rs,6,60,000 regarding Account No, 2642-31 in presence of the witnesses in the month of June 2006, which was dishonoured by the concerned bank? OPP
(2) Whether the plaintiff is entitled to the decree for recovery of Rs,6,60,000 as prayed for? OPP
(3) Whether the plaintiff has got no cause of action and locus standi to file $his suit? OPD
(4) Whether the plaintiff is estopped by his words and conduct to bring this suit? OPD
(5) Whether the suit is time-barred? OPD
(6) Whether the plaintiff is liable to be rejected under Order VII Rule 11, C.P.C.? OPD
(7) Whether the suit is false, frivolous and vexatious and the defendant is entitled to get special costs under section 35-A, C.P.C.? OPD.
(8) Relief
4. The appellant appeared as P.W.1 and produced copy of Cheque (Exh. PA), copy of dishonour slip (Exh.PA/1), copy of another cheque (Exh. P/2) and copy of dishonour slip (Exh. P2/1), copy of suit titled Asif Mehmood versus Muhammad Idrees (Exh.P-3), copy of order dated 9-10-2006 (Exh. P(4), copy of application filed under sections 22-A/22-B, Cr.P.C. (Exh. P/5) and copy of order-sheet (Exh.
P/6) in support of his case. On the other hand, the respondent appeared as DWI. And tendered in evidence the documents Exh. D1 to Exh. D20 in support of his defence. The trial court decided issues Nos.1 and 2 jointly in favour of the respondent and decreed the suit on 30-4-2010 to the full claim ofRs,6,60,000.
5. The learned counsel for the appellant submits that the respondent failed to produce the witnesses, in whose presence the cheque in question was issued; no date, time and place for issuing of the cheque was mentioned in the complaint; the respondent had no enough sources to pay the said amount to the appellant; the respondent filed various suits, which were dismissed and this fact is evident from the documents Exh.D-1 to Exh.D-20; during the proceedings, the appellant offered the respondent in the court to solemnly affirm his oath on the Holy Qur'an in support of his claim, which he refused, therefore, adverse presumption be drawn against his claim; the original cheque was not presented and only its certified copy was presented; under the law, the burden of proof to deliver and execute the cheque was upon the respondent, which he failed to discharge; even otherwise, the account of the appellant was already closed; the respondent has taken the advantage of his relationship with the appellant and manoeuvred and had stolen away the cheque and presented the same after its fabrication by practising fraud and forgery; that the appellant neither issued any cheque nor is liable to pay any amount; Reliance is placed upon the cases of, United Bank Limited v. Ch. Ghulam Hussain (1998 CLC 816) and Syed Ali Hussain Naqvi v.
Ali Sher Naqvi (2005 CLC 1751) and prays for setting aside of the decree.
6. Conversely, the learned counsel for the respondent submits that issuance of the cheque is admitted by the appellant as he appeared before the court of Additional Sessions Judge/Ex-officio Justice of the Peace on 18-7-2006 and admitted to have executed the cheque; that the said cheque was dishonoured and Exh.PA/I is the copy of dishonour slip; the proceedings under Order XXXVII, C.P.C. Are summary in nature, as already it stands established that the appellant issued a cheque of Rs,6,60,000, which was dishonoured; a criminal case was also stood registered against the appellant at the behest of the respondent, in which he has been convicted; earlier suit filed by the appellant was dismissed under Order VII Rule 11, C.P.C.; that no application of money laundering was ever filed by the appellant against the respondent. Therefore, prays for dismissal of the appeal.
7. We have heard the learned counsel for the parties and perused the available record.
8. Under section 118 of Negotiable Instruments, Act 1881, a presumption is drawn in respect of consideration, date, time of acceptance, time of transfer, endorsement, and holder in due course.
The said provision is reproduced hereunder for ready reference: "118. Presumptions as to negotiable instruments of consideration: ' Until the contrary is proved, the following presumptions shall be made:
(a) of consideration: that every negotiable instrument was mare or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, endorsed negotiated or transferred for consideration;
(b) As to date: that every negotiable instrument bearing a date was made or drawn on such date;
(c) As to time of acceptance: that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;
(d) As to time of transfer: that every transfer of a negotiable instrument was made before its maturity;
(e) As to order of endorsement: that the endorsement appearing upon a negotiable instrument were made in the order in which they appear thereon;
(f) As to stamp: that a lost promissory note, bill of exchange or cheque was duly stamped;
(g) That holder is a holder in due course: that the holder, of a negotiable instrument is a holder in due course; provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him".
' The respondent has, therefore, discharged his liability, accordingly. Even otherwise, the respondent has also made a statement as P. W.1 to the extent that he was running a shop with a name earlier but at the time of his evidence he was not running any shop, meaning thereby that earlier he had the capacity to pay the amount to the appellant. The next argument is that the original cheque was not presented and that only its certified copy was presented. A perusal of the record in this behalf reveals that Exh.PA/1 mentions the stamp of the Additional District Judge, Chakwal who verified after its comparison with the original forming part of record of the file.
Under Article 76(1) of Qanun-eShahadat Order, secondary evidence may be given of the existence or contents of a document when the original document has formed part of a judicial record, which is not available and only a certified copy thereof is available, which is admissible as a secondary evidence. The said provision of Qanun-e-Shahadat Order is also reproduced hereunder for ready reference:- "76. Cases in which secondary evidence relating to document may be given.---Secondary evidence may be given of the existence, condition or contents of a document in the following cases:-- "(i) When an original document forming part of a judicial record is not available and only a certified copy thereof is available, certified copy of that certified copy shall also be admissible as a secondary evidence Therefore, we conclude that absence of the original is not fatal to the claim of the respondent.
9. The next argument of learned counsel for the appellant is that an adverse presumption be drawn against the respondent when he had failed to take the oath on solemn affirmation. Under section 9 of Oaths Act, 1973, the court may ask a party or .a witness whether he would make oath as proposed by opposite party and if he accepts such an offer, the oath shall be administered and after such an oath, the evidence so given shall be conclusive proof of the matter in issue. However, if the party or the witness refuses to take the oath or solemn affirmation, he shall not be compelled to make such an oath. The court shall record this fact as a part of the proceedings together with reasons, which may be assigned for such refusal. Since the oath offered by the appellant was not accepted by the respondent and he rested his claim before the court on the basis of evidence by showing enough confidence, therefore, the case was to be decided on its own merits and, thus, we conclude that the appellant has failed to discharge his burden as required under the law. The trial court has rightly passed the judgment and decree impugned before this Court in the present appeal. Moreover, the judgments cited at bar are not applicable to the facts of the case. The learned counsel for the appellant has not been able to point out any illegality and misapplication of law upon the facts on the basis of reappraisal of evidence. Therefore, we dismiss this .Appeal, with no order as to costs.