1. ABDUL LATIF KHAN, J.--- Through the instant appeal under section 96, C.P.C. the appellant Abdul Majeed Chaudhry has assailed the validity of judgment and decree dated 19-7-2012 passed by the learned Additional District Judge-III, D.I.Khan whereby suit of the respondent Abdul Hakim Shah for recovery of Rs.46,00,000/- was decreed.
2. 2.Precise facts leading to the instant appeal are that the respondent/plaintiff filed a suit against the appellant/defendant for recovery of Rs.46,00,000/- on the basis of Cheques No.218247 dated10- 11-2008 to 218257 dated 10-9-2009 (eleven in number) each for an amountofRs.4,00,000/- andanotherChequeNo.218258dated10-10-2009 for an amount of Rs.2,00,000/-.
3. 3.The suit was contested by the appellant/ defendant by filing his written statement. The learned trial Court framed ten issues including relief from the divergent pleadings of the parties. The parties produced their respective evidence as they wished to adduce. After hearing the arguments of learned counsel for the parties, the learned trial Court decreed the suit of the respondent/plaintiff vide impugned judgment dated 19-7-2012, hence the instant appeal.
4. 4.Learned counsel appearing on behalf of the appellant referred to plaint wherein at serial No.5, a cheque has been returned by the bank being post-dated and argued that to the extent of this cheque, no suit can be filed, as the same was presented after six months. However, he vehemently contended that cheques were taken from the appellant under coercion. He further argued that in para-2 of the plaint, the respondent mentioned that a sum of Rs.50,00,000/- was outstanding against the appellant, as the parties were running a joint business, but no evidence to this effect has been produced. He argued that the cheques were issued at Rawalpindi, drawn on National Bank of Pakistan, Rawalpindi Branch and the appellant is also resident of Rawalpindi and as such the civil Court at D.I.Khan has got no territorial jurisdiction to adjudicate the matter. He argued that the arbitration agreement was not annexed with the plaint and the same has not been proved through positive evidence. He pointed out contradictions in the statements of the witnesses produced by the respondent and claimed that the arbitration agreement cannot be relied upon.
5. He attacked the credibility of Petition Writer (P.W.-6), who scribed the arbitration deed, and pointed out that pages were left blank by the witness in the register maintained by him for making entries afterwards in connivance with the persons making fictitious entries and the said register does not contain the signature of Senior Civil Judge. He contended that the respondent had entered into an agreement with one AshiqSalimwhereinheadmittedthattheamountofRs.50,00,000/- was given to the said Ashiq Salim but the same has not been produced and as such the claim of the respondent cannot be considered as a valid claim.
6. 5.As against that, learned counsel appearing on behalf of the respondent argued that the issuance of cheques has been admitted by the appellant, however, the same were claimed to have been taken from him by the respondent under coercion. He referred to the written statement of the appellant and argued that no such plea was taken therein by the appellant, rather the plaint speaks otherwise. He argued that in cases of summary trial under Order XXXVII, C.P.C., presumption of truth is attached to a negotiable instrument unless contrary is proved by the defendant, but in the instant case, the solitary statement of the appellant lacks proof of the same. He contended that the appellant has categorically admitted the arbitration agreement which has been proved by the respondent through one Hakim, witness and one of the arbitrators. He supported the impugned judgment.
7. 6.I have given my thoughtful consideration to the arguments of learned counsel for the parties and perused the record with their valuable assistance.
8. 7.Perusal of the plaint reveals that the instant suit has been filed for recovery of Rs.46,00,000/- on the basis of cheques issued by the appellant in favour of the respondent. Although in para-2 of the plaint, a slight reference has been made, but in clear words, the factum of arbitration has not been alleged nor the arbitration deed has been annexed with the plaint which was later on produced in the evidence of one of the marginal witness who appeared as D.W. Though the respondent has failed to mention the same in the plaint and the latter production in the evidence cannot be legally considered, but at the same time, the appellant has admitted the arbitration and the execution of document wherein two arbitrators, one nominated by each party, were given powers to decide the matter and as such despite failure of the respondent to mention the same in the plaint, the admission of the appellant makes it clear that arbitration took place and thereupon the deed was reduced into writing which is duly admitted by D.W.-1 in the Court to the effect that he was presented by one Dr. Abdur Rehman Khan in the said proceedings.
9. 8.It is admitted that the cheques were issued by the appellant in favour of the respondent.
10. However, he has filed a suit for declaration in Rawalpindi, copy of which is available on file. In Para- 4 of the same, he has also admitted the issuance of cheques apart from the arbitration deed available on file. However, he vehemently stressed that the cheques were issued by him under coercion. Perusal of the written statement reveals that no such plea has been taken in it by the appellant nor he has uttered a single word about coercion while appearing as D.W.-1, rather opted to take the plea that he has no business relation with the respondent and has never issued any cheque in his favour in lieu of obligation or loan. This plea has been taken for the first time in his Court statement and that too, in departure to the written statement because in the written statement, almost a different plea has been taken that the cheques were bogus, concocted and outcome of fabrication and planted against him for the reason best known to the respondent.
11. There is no positive evidence to this effect or in support of coercion and the non-existence of any relations between the parties and money exchanged hands in the shape of loan or investment.
12. Needless to mention that the burden lies in like cases heavily upon the defendant to prove contrary, because presumption is attached to the negotiable instruments. It was the bounden duty of the appellant/defendant to prove the element of coercion or fabrication etc, but a few lines sole statement of D.W.-1 could hardly be considered as contrary proof to the presumption attached to the negotiable instrument. The initial presumption in cases based upon negotiable instruments is that they were made, drawn or accepted for consideration. Once the signatures on these documents are admitted or proved, burden shifts to the maker and mere denial, on the ground that the same were issued under coercion or on one pretext or the other, cannot exonerate the defendant from discharging the burden lying upon him, as against the statutory presumption attached to the negotiable instrument.
13. 9.The agreement available on file in between the respondent and one Ashiq Salim, though not exhibited, was forcefully relied upon by counsel for the appellant but again hurdle came in his way as to those Rs.50,00,000/- mentioned in the agreement are the same which are disputed in the instant case under the cheques referred above or otherwise. The statement of the respondent in cross-examination reveals that he has admitted that agreement, however, contended that it had no concern with the instant case. There are numerous lacunae in the cross-examination of the respondent but the admission of the appellant regarding the issuance of cheques and the non- proof of coercion, if considered and weighed in juxtaposition with special reference to the statutory presumption attached to the negotiable instrument, would prove that the issuance of cheques is a ground reality which cannot be denied by the appellant and in the absence of contrary proof, the respondent is entitled to the relief as claimed for, except to the extent of Cheque No.218249 dated 10-1-2009 shown at serial No.4 of para-2 of the plaint, which was returned by the bank on the ground of being post-dated cheque.
14. 10.SofarastheterritorialjurisdictionoftheCourtat D.I.Khan is concerned, the claim of the respondent is that the cheques were issued in his house situated at D.I.Khan to which there is no rebuttal on behalf of the appellant and an omnibus issue of jurisdiction has been raised in the written statement but with no specific plea that the cheques were issued at a place other than D.I.Khan or the transaction between the parties took place out of D.I.Khan. In the trial Court, neither this plea has been taken in the written statement nor the solitary statement of the appellant speaks about this objection and for the first time, this plea has been taken before this Court in appellate jurisdiction which is not entertainable at this juncture and has been raised to frustrate the entire proceedings and decree granted in favour of the respondent by the trial Court after recording pro and contra evidence and as such is without force.
15. 11.For the foregoing reasons, this appeal is hereby dismissed with the exception of Cheque No.218249 issued on 10-1-2009 which being post-dated, the respondent is not entitled for the decree of amount mentioned in the said cheque and suit of respondent/plaintiff with respect to Cheque No.218249 stands dismissed.