' ATIR MAHMOOD, J. --- Through this Regular First Appeal, the appellant Syed Riaz-ul-Hassan has called in question the legality of judgment and decree dated 02.10.2004 passed by learned Additional District Judge, Sadiqabad whereby the suit of the respondent-plaintiff under Order XXXVII, Rule 2, C.P.C. For recovery of Rs, 1,61,850/-was decreed with costs.
2. Brief facts of the case are that respondent Muhammad Saleem, Proprietor Adnan Corporation filed a suit under Order XXXVII, Rule 2, C.P.C. For recovery of an amount of Rs, 1,61,850/- from the appellant alleging that the appellant purchased pesticides from the plaintiff and in order to satisfy the price of the pesticides, the appellant issued a cheque Of the said amount of his Account No, 1741 being maintained in Allied Bank of Pakistan Ltd., Main Bazaar Sadiqabad which was dishonoured on its presentation before the bank on 01.12.1997 on the ground that the signatures of the appellant did not match with those available with the bank. When contacted by the plaintiff, the appellant refused to pay the said amount. Hence the suit was filed.
3. The appellant contested the suit by filingwritten statement. He averred that he neither purchased any pesticides from the plaintiff nor issued the disputed cheque and the cheque was result of fraud and forgery. Keeping in view divergent pleadings of the parties, following issues were struck down by the Trial Court:--- "ISSUES
(1) Whether the cheque in dispute is forged document based on fraud? OPD.
(2) Whether the suit is time-barred? OPD.
(3) Whether the plaintiff is entitled to the decree as prayed for in the plaint? OPD.
(4) Whether the suit is not competent in view of preliminary objections No, 8 and 9 of the written statement? OPD.
(5) Relief "
4. After recording oral as well as documentary evidence of the parties, learned Trial Court decreed the suit of the respondent with costs vide judgment and decree dated 02.10.2004 which is impugned through the instant RFA.
5. Learned counsel for the appellant has argued the case on legal and factual aspects. He submits that the suit of the plaintiff was not maintainable under the provisions of Negotiable Instruments Act as well as Under Section 69(2) of Partnership Act. He avers that no cheque was ever issued to the present respondent/plaintiff as allegedly the disputed cheque (Exh.P1) was issued in the name of Adnan Corporation. He states that the suit was initially filed by Adnan Corporation and when the written statement was filed raising legal as well as factual objections, an application for amendment of the suit was made by the respondent-plaintiff and the original plaintiff was substituted by the present respondent Muhammad Saleem. Learned counsel by that the original plaintiff could not be substituted by a new one and the said act of the Trial Court does not commensurate with the provisions of Order XXX, Rule 10, C.P.C. In support of his assertions, learned counsel for the appellant has relied upon the law laid down in case cited as 2009 CLD 163.
6. Conversely, learned counsel for the respondent has controverted the arguments raised by learned counsel for the appellant and fully supported the impugned judgment and decree. He states that the impugned judgment and decree is in accordance with law. He avers that the appellant was liable to pay the amount mentioned in the disputed cheque and that the respondent cannot be non-suited on the basis of mere technicalities.
7. I have heard the arguments put forth by both sides and also perused the record made available before me.
8. My issue-wise findings are given below:--- Issues No, 1 & 3
9. Since issues No, 1 & 3 are inter-connected, therefore, they are being decided together. Primarily, it was incumbent upon the respondent/plaintiff (hereinafter referred to as plaintiff) to prove his case by discharging the onus of issue No,
3. To prove issue No, 1, the plaintiff produced as many as four witnesses, i,e, Muhammad Aslam, an Officer of Allied Bank as PW-1, Muhammad Nusrat as PW-3, Muhammad Arshad as PW-4 whereas he himself appeared as PW-2.
10. PW-1 Muhammad Aslam is officer of Allied Bank of which the appellant/defendant was the account holder. He deposed that the disputed cheque was dishonoured on account of difference in signature of the executant. In cross-examination, he stated that when there is a difference of signature, the bank may refuse the encashment of the cheque. He, however, could not tell who signed at the back of the cheque.
11. The plaintiff himself appeared as PW-2. He deposed that he as well as the defendant deal in pesticides and due to this reasons, they have a business relationship with each other; that about 5% years ago, the defendant took pesticides of which the payment of Rs, 161,850/- was promised to be made in the November, 1997; that for fulfilment of this obligation, the defendant issued a cheque (Exh.P1) in the presence of Nusrat and Muhammad Arshad; that defendant stated at that time that he did not have a balance in his account and the plaintiff may get encashed the cheque after 12/14 days. When after 12/14 days, the cheque was presented before the Allied Bank for its encashment, the same was dishonoured. In cross-examination, the plaintiff admitted that Adnan Corporation is not a registered firm. He denied the suggestion that he is not the owner of Adnan Corporation. He admitted that on account of business transaction, he used to maintain a register for transactions, however, if any amount is given to someone, the same is not entered in the said register. Then volunteered, they enter the transactions in their register: that he did not enter the transaction of the defendant in the said register. Volunteered that regarding neighbourhood shopkeepers, the transactions are not entered in the register. He denied the suggestion that the defendant has no shop under the name and style of Sada Hussain. He further denied that he has no business relationship with the defendant. He admitted that the witnesses above referred are not marginal witnesses of any writing. He further deposed that there is no witness of sale of the pesticides to the appellant/defendant. He further admitted that he has not mentioned the details of the pesticides in the plaint. At the end, he denied the suggestion that the disputed cheque was not issued by the defendant and the signature on the said cheque are forged and fictitious. He admitted that the cheque was not issued in his name. Volunteered that it was issued in the name of the shop.
However, he stated that the defendant male fidely put the false signature on the cheque.
12. PW-3 Muhammad Nusrat deposed that he has a business relationship with the plaintiff and about 51/2 years ago, he went to Adnan Corporation for receiving his payment of cotton given to the plaintiff; that the plaintiff stated that he has no money and that he has to receive some amount from the defendant and for that reason, he alongwith the plaintiff went to the shop of the defendant where the defendant Riazul-Hassan opened his register and admitted the liability of Rs, 161,000/62,000/- and issued the disputed cheque of Rs, 161,000/62,000/-. In cross-examination, he admitted that he has no business relationship with the defendant. Then volunteered that he used to take pesticides from defendant and the plaintiff. He stated that the name of the shop of the defendant was Sada Hussain. He could not tell the name of the shopkeepers in the surroundings of the shop of the defendant. PW-3 further stated that he used to take pesticides from the plaintiff on credit basis. He admitted that whenever cotton was sold to the plaintiff, he used to issue a receipt.
He admitted that the plaintiff did not check his account/khata in his presence regarding liability of the defendant as to how much amount was to be paid by the defendant to him. Volunteered that his khata was checked by the plaintiff himself and the plaintiff had to pay Rs,161,000/-62,000/- to him. Then stated that Rs, 1,15,000/-were due against the plaintiff. He further stated that he took Rs, 50,000/- on that day from the plaintiff. He denied the suggestion that the defendant neither issued any cheque to the plaintiff nor the cheque was signed by the defendant in his presence. He denied the suggestion that the defendant did not do the business of pesticides.
13. Muhammad Arshad appeared as PW-4 and deposed that the defendant gave cheque of Rs, 161,000/62,0000/- to the plaintiff after its due completion and at that time, the defendant stated that he has no balance in his account and the cheque may be got enchased after 10/15 days. In cross-examination, he submitted that the defendant purchased the pesticides from the plaintiff in his presence. He further stated that he has no relationship with the defendant and on account of business transaction, he used to come over there; that he had business transactions with the plaintiff. He, however, denied the suggestion that the defendant was not liable to make any payment to the plaintiff and the disputed cheque is forged one and the signatures on the said cheque were fictitiously and falsely put.
14. Thereafter, the defendant Riaz-ul-Hassan appeared himself as DW-1 and deposed that he has been doing business of transport since 1993 to 2000 when he returned from Saudi Arabia and that he used to run his bus from Sadiqabad to Faisalabad. He categorically stated that he did not have any business of pesticides nor it had any business relationship with the plaintiff; that the disputed cheque was forged and his signatures on the cheque were also fictitious; that he had neither received any amount nor any cheque was issued to the plaintiff. In cross-examination, he denied the suggestion that from 1995 to 2000, he used to do the business of pesticides. He denied the suggestion that after 2000, there existed his shop and he used to open it occasionally. He denied the suggestion that Exh.P1, i,e, disputed cheque, was fraudulently executed by him by putting false signatures. He also denied the suggestion that the plaintiff was entitled to recover from him Rs, 161,850/-.
15. DW-2 Muhammad Jafar Shah supported the version of the defendant by stating that the defendant remained in Saudi Arabia about 7/11 ,years and alter his return therefrom, he used to ply his bus; that he never remained associated with the business of pesticides nor had any business relationship with the plaintiff. In cross-examination, he denied the suggestion that the defendant used to do the business of pesticides in Grain Market, Sadiqabad.
16. In rebuttal, PW-5 Hameed-ud-Din, officer of the Allied Bank, Main Bazar, Sadiqabad was produced as a witness of the plaintiff who deposed that Account No, 1741 was in the name of Syed Riaz-uI-Hassan son of Muhammad Hussain Shah and in the column of signature, name of Riaz Shahid is written. He deposed that he had no record regarding the loss of cheque nor the loss of cheque book was ever reported to the bank. In cross-examination, he stated that it is necessary that whenever the cheque or cheque book is lost, the matter is to be reported to the bank, however, he stated that he did not know any rule in this regard. He denied the suggestion that there is no such rule.
17. From the perusal of above evidence, it comes on the surface that the disputed cheque was not issued in the name of the plaintiff rather it was issued in the name of Adnan Corporation. It is a bearer cheque in the name of Adnan Corporation and not in the name of the plaintiff. The prime duty of the plaintiff was to establish that the said cheque was issued for the fulfilment of any obligation as the issuance of the said cheque was categorically denied by the defendant not only by filing written statement put also during the course of evidence. The plaintiff has not been able to establish that any sort of pesticides were given to the defendants and for its consideration, the said cheque was issued. The evidence produced by the plaintiff is shaky and appears to be manoeuvred. There is material contraction in the statement of the plaintiff and PW-4 regarding presence of the witnesses at the time when the pesticides were allegedly handed over by the plaintiff to the defendant. The plaintiff while appearing as his own witness did not refer to any document or register of delivery of the pesticides to the appellant-defendant on credit and stated that there was no one present when the pesticides were delivered to the defendant whereas the PW-4 Muhammad Arshad contradicted the stance of the plaintiff by deposing that when the pesticides were given to the defendant, he was present on the spot. In addition, it does not appeal to a prudent mind, particularly in the prevailing circumstances, that the pesticides were given to the appellant-defendant but no such entry was made in any register or khata. Usually, whenever any business transaction is made, such entries are recorded in one sort or the other in a register or kahta etc. But in the presence case, no such kahta or register was prepared or produced in evidence.
18. Furthermore, when the signatures of the executant were denied and admittedly, the signatures were different from those available with the bank, then the burden to prove the execution of cheque in favour of the plaintiff by the defendant and any consideration for issuance of the cheque heavily lies with the plaintiff which onus could not be discharged by the plaintiff and the execution of the cheque' by the defendant could not be proved by the plaintiff beyond reasonable doubt, particularly when there..Is no allegation in the plaint that the appellant-defendant has put his false signatures on the cheque knowingly just to deceive the plaintiff and that he is entitled to the decree as prayed for.
19. In view of the above, both the issues No, 1 and 3 are decided in favour of the defendant and against the plaintiff.
Issue No, 2
20. This issue pertains to the point of limitation. The onus to prove it was placed upon the defendant.
21. From the perusal of the record, it is evident that the suit was originally filed by Adnan Corporation through its proprietor Muhammad Saleem on 13.11.2000. Thereafter, an application for amendment of the plaint was filed on 28.11.2001 which was conceded by the defendant on 22.06.2002 and accordingly, amended plaint was filed on the same day. By allowing the said amendment, the original plaintiff Adnan Corporation was replaced with Muhammad Saleem, the present respondent. Under Section 22 of the Limitation Act, 1908, limitation for filing of the suit is to be reckoned from the date when the plaintiff or defendant was substituted or added. Section 22 of the Limitation Act is reproduced below:- "22. Effect of substituting or adding new plaintiff or defendant. (1) Where, after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party."
22. Though no specific evidence has been produced by the defendant on this issue but as the question of limitation is a mixed question of law and fact, therefore, this Court is under a legal obligation to determine the maintainability of the suit whenever any such objection is raised. The limitation for filing of the suit for recovery of the amount on the basis of the cheque was three years commencing from the date of refusal of its encashment by the bank. Respondent Muhammad Saleem was substituted as plaintiff on 22.06.2002, as such, the suit of the plaintiff will be deemed to have been filed on 22.06.2002 when the amended plaint was filed whereas the cheque in dispute was refused on 01.12.1997, as such, the suit in view of Section 22 of the Limitation Act was barred by time by one year 6 months and 22 days and was liable to be dismissed on this score alone. In this view of the matter, this issue is also decided in favour of the appellant-defendant and against the respondent-plaintiff.
Issue No, 4
23. In view of my findings on issues No, 1 and 3, as the cheque was not issued in the name of the present plaintiff and admittedly, it was a bearer cheque issued in the name of Adnan Corporation, therefore, the suit was not maintainable.
24. In view of the above discussion, the judgment and decree passed by the Trial Court is against the law and fact, as such, it is not sustainable in the eye of law. Resultantly, the instant RFA is allowed, the impugned judgment and decree dated 02.10.2004 is set aside and the suit of the plaintiff is dismissed.
RFA allowed/.