' ATIR MAHMOOD, J. --- Through this Regular First Appeal, the appellant Ghulam Hussain has impugned the judgment and decree dated 19.04.2008 passed by learned Additional District Judge, Rahim Yar Khan whereby the suit of the respondent-plaintiff under Order XXXVII, C.P.C. For recovery of Rs, 1,00,000/- was decreed with costs.
2. Brief facts of the case are that the respondent Muhammad Aslam filed a suit under Order XXXVII, C.P.C. For recovery of an amount of Rs, 1,00,000/- from the appellant alleging that the appellant was liable to pay Rs, 100,000/- that in order to discharge his liability, the appellant issued a cheque No, 12625847 dated 10.07.2006 of his Account No, 1466 being maintained in UBL Shahi Road, Rahim Yar Khan; that the cheque was dishonoured when presented before the bank for encashment and Rs, 200/-were also charged from the plaintiff; that when contacted by the plaintiff, the petitioner- defendant refused to pay the amount due against him. Hence this suit was filed.
3 The petitioner-defendant contested the suit by filing written statement. Out of divergent pleadings of the parties, the following issues were framed.
"ISSUES
(1) Whether the plaintiff is entitled to recover money amounting to Rs, 1,00,000/- from the defendant on the basis of cheque No, 12625847 dated 10.07.2007 as prayed for? OPP.
(2) Whether the plaintiff has got no cause of action to file the present suit? OPD.
(3) Whether the plaintiff filed the instant suit on the basis of fraudulent and fabricated facts. While the disputed cheque was lost from the defendant (as blank) and in this . Respect, the defendant got entered rapat No, 37 dated 24.10.2000 at P/S Abadpur, due to which impugned cheque is out- dated and is not maintainable in its present from and is liable to be rejected? OPD.
(4) Whether the plaintiff has come to the court with unclean hands? OPD
(5) Whether the suit is time-barred? OPD.
(6) Whether the plaintiff has filed this false and frivolous suit, hence, the defendant is entitled . To get special costs of Rs, 10,000/-? OPD.
(7). Relief."
4 After recording oral as well as documentary evidence of the parties, learned Trial Court proceeded to decree the suit vide judgment and decree dated 19.04.2008. Hence this RFA.
5. Learned counsel for the appellant inter alia contends that joint findings of learned Trial Court on issues No, 1 & 3 are against settled principles of dispensation of justice: that the plaintiff during his cross-examination states that he was given the disputed cheuqe on 11.01.2006 on account of amount pertaining to outstanding business money relating to year 2000 whereas the cheque from the face of it appears to have been executed on 10.07.2006 which fact was altogether ignored by learned Trial Court; that the suit of the respondent was badly barred by time as it was filed on 22.07.2006 for an amount pertaining to the year 2000: that thee cheque in question was forged one; that the appellant denies the execution of cheque; that the appellant did not sign the cheque; that the signature over the cheque did not tally with the signatures of the appellant available with the bank that the cheque pertains to business account of Ahmad Bilal and Company wherein the plaintiff was employee who misappropriated the cheque and filled- in the amount at his own to used it against the appellant; that the version of the appellant has been altogether ignored; that the learned Trial Court has failed to appreciate the evidence in its true spirit and picked up the inconsequential portion of evidence without reference to the context; that the impugned judgment and decree suffers from material irregularities and misreading and non-reading of evidence, therefore, it cannot sustain in the eye of law. Learned counsel prays that this RFA be allowed and the impugned judgment and decree be set aside.
6. On the other hand, learned counsel for the respondent has supported the impugned judgment by asserting that the learned Trial Court rightly decreed the suit by appreciating the evidence produced by the parties; that onus to prove on issues No, 2 to 7 was upon the appellant/defendant who failed to discharge the same by production of any cogent and reliable evidence.
7. After perusal of the record and hearing the arguments, the point for consideration before this Court is whether the cheque in dispute was validly given to the respondent/plaintiff for its encashment and the respondent was entitled for the decree as prayed for.
8. As per contents of the plaint, the appellant issued the disputed cheque for the fulfilment of his liability towards the respondent and while filing the written statement the appellant did not deny the signatures on the disputed cheque but stated that the cheque was misplaced and a Rapt No, 37 dated 14.10.2000 was got registered with the local police,. In the preliminary objection No, 5, the appellant stated that he is not liable to make payment of any amount to the plaintiff and the disputed cheque is without consideration
9. The respondent appeared himself as PW-1 and deposed that the defendant issued the cheque No, 12625847 dated 10.07.2006 of UBL Rahimyarkhan for the fulfillment of his liability and when the said cheque Ex. P1 was presented for encashment, it was dishonoured on 10.07.2006. Ex. P2 is the memorandum issued by the bank wherein it has been written that his account was closed. In cross-examination the respondent stated that the said cheque was given on 11.01.2006 and the liability for the said payment was for the year 2000. In cross-examination he categorically denied the suggestion that Ex. P1 was prepared by him by committing fraud and forgery. It has not been suggested to the PW-1 that the signatures of the appellant on the cheque were forged. PW-2 Muhammad Sadiq son of Taj Muhammad and PVV-3 Maqsood Ahmad son of Ghulam Muhammad supported the contentions of the respondent and they both categorically stated that the disputed cheque was filled-in by the appellant/defendant himself: who signed the same in their presence.
Nothing could be brought on record through cross examination which could favour the present appellant. PW-4 Ihsan Qadar the Area Operation Manager of UBL certified the cheque Ex. P1 being of his branch of Railway Road, Rahimyarkhan and stated that the bank account was 'closed. In cross-examination PW-4 stated that the signatures of Ghulam Hassan on Ex. P1 are different from the Signatures on the specimen card retained by the bank He stated that the-defendant has signed the specimen signatures by writing whereas on Ex. P1 the signatures are different. In rebuttal the present appellant appeared as LW-1 and for the first time deposed that he did not know the plaintiff. He also deposed that the cheque Ex. P1 was misplaced on 25 06.2000 when he came to Rahimyarkhan He further deposed that on 14.10.2000 a Rapt No, 37 was got entered with Police Station Abadpur, Rahimyarkhan. He further stated that his signatures on Ex. P1 are forged and fictitious. In cross-examination he submitted that he sworn an affidavit on 26.06.2000 for registration of the rapt in the police. He further stated that his rapt was recorded in the police station on the telephone of one San Hassan Makhdoom to whom he does not want to produce in his evidence. In my view the appellant/defendant made a departure from the pleadings i,e, written statement by stating that he did not know the plaintiff and that his signatures on the disputed cheque are forged and fictitious. It is un-believable that a person, who is not known to the other how he can put the forge signatures on a document just the originals. Though the appellant denied the execution of his signatures on the disputed cheque but still no effort was made to get the comparison of his signatures with disputed as well as with admitted signatures through examination by a hand-writing expert. I, myself, have examined and compared the signatures of the appellant on the disputed cheque with the signatures of the appellant put on the written statement. In my opinion both the signatures are just identical.
10. I am of the considered opinion that the respondent established his claim against the present appellant through production of convincing and cogent evidence whereas the appellant miserably failed to controvert the respondent and as such the findings of the learned Trial Court do not suffer from any illegality or material irregularity and this appeal being devoid of any force is dismissed.
RFA aismissed.