' This Regular First Appeal is directed against the judgment and decree dated 17.5.2011 passed by the learned Addl. District judged Multan, whereby the suit of Abid Ali, respondent/plaintiff for the recovery of Rs, 3,50,000/- was decreed.
2. Briefly, the facts are that the respondent/plaintiff instituted a suit for the recovery of Rs, 3,50,000/- under Order XXXVII, CPO This suit rested on a cheque bearing No, A-4793389 drawn on Nationl Bank of Pakistan, Bosan Road Branch, Multan. The cheque was presented for encashment, but the same turned out tp be a dud chequ and was dishonoured.
3. The appellant/defendant filed an application seeking leave to defend. However, instead of contesting the same, the learned counsel for the plaintiff made a statement to the effect that the plaintiff had had no objection to granting leave to defend provided the defendant was made to furnish a surety/security equivalent to the amount claimed in the suit. Resultantly, leave to defend was granted to the appellant vide order dated 20.1.2010 passed by the learned trial Court.
Subsequent to the leave granting order dated 20.1.2010, the defendant/appellant filed written statement in which he took the plea that he had a business transaction with the plaintiff and nothing was due from him- to the plaintiff and that he had issued the cheque in question to the plaintiff as a guarantee, which was to be used at the time of final settlement between the parties to the suit.
4. Out of the divergent pleadings of the parties, the following issues were framed on 8.3.2010:-- "1. Whether the plaintiff has no cause of action and locus standi to file this suit as the suit is misconceived facts? OPD
2. No whether the plaintiff has not come to the Court within clean hands and as such this Court has got or jurisdiction to entertain the matter? OPD
3. Whether the impugned cheque was as security without consideration and a criminal case was registered qua the defendant, who remained in jail for six months and was released on bail, if so, its effect? OPD 4 Whether the plaintiff advanced a sum of Rs, 3,50, 000 as loan to the defendant, who issued cheque and or presentation of the same it was dishonoured. If so its effect? OPP
5. Relief."
5. In order to prove his case, the plaintiff appeared as P.W.1, while he produced Muhammad Aslam son of Muhammad Asghar as P.W.2. He also examined Muhammad Ashraf son of Ghulam Ali as P.W.3. In documentary evidence, the cheque in question was tendered in evidence as Exh.P.1, while the memos issued by National Bank of Pakistan, Bosan Road Branch, Multan indicating the non- payment to the plaintiff on account of insufficient funds in the account of the defendant were got exhibited as Exh.P.2 to Exh.P.4.
6. On 4.3.2011, the appellant/defendant was required to produce evidence in rebuttal on 15.3.2011.
Since he failed to avail of the opportunities provided to him to adduce evidence in support of his plea, his right to adduce evidence was closed vide order dated 9.5.2011. As such the case of the appellant/defendant went by default.
7. As stated above, the learned trial Court proceeded to decree the suit of the respondent as prayed for.
8. In support of this appeal, the learned counsel for the appellant contends that there was no justification to close the evidence of the appellant on 9.5.2011; that the plaintiff lodged FIR No, 122 dated 12.2.2007 under Section 489-F, PPC at Police Station Gulgashat District Multan; that the appellant remained behind the bars for six months in that case and he is being made to suffer again on the basis of the very same cheque; that if at all the respondent/plaintiff had any claim, he could have instituted a suit for rendition of accounts; that the evidence produced by the respondent was misconstrued. Finally, it was argued that even in the absence of any evidence of the defendant, the plaintiff was to stand on his own legs and prove his case by adducing convincing, cogent and incontrovertible evidence.
9. The learned counsel for the respondent/decree-holder refutes and controverts the arguments advanced by the learned counsel for the appellant. He submits that the impugned judgment and decree is unexceptional. It was based on oral as well as documentary evidence and that the appellant has failed to point out any misreading or non-reading of the evidence on the part of the learned trial Court. Lastly, it was argued by him that under Section 118 of the Negotiable Instruments Act, 1881, the Court could raise the presumption that the cheque was issued against consideration.
10. I have heard the learned counsel for the parties and perused the record with their assistance.
11. From a perusal of the record, it is crystal clear that despite availing of several opportunities, the appellant did not produce any evidence in support of the stand taken by him in the written statement. His evidence was not present on 15.3.2011, 24.3.2011, 7.4.2011, 15.4.2011, 23.4.2011, 28.4.2011 and 9.5.2011. Time and again, a warning was sounded to him that he was being provided the last opportunity to produce evidence, but he did not take the matter seriously. His approach remained casual and flippant. He has only himself to blame. It goes without saying that justice is to be tempered with mercy and the parties are to be provided an adequate opportunity to establish their respective cases. But it does not mean that they are to be allowed to regulate the proceedings of the Court or the Courts are to be left at their mercy. If the proceedings are to be concluded expeditiously in the given case, the Courts concerned would have to take extraordinary measures to curb the tendency of seeking adjournment after adjournment and that too without any just and reasonable cause. I find no illegality or material irregularity to have been committed by the learned trial Court in its order dated 9.5.2011 by which the evidence of the respondent was closed.
12. In the absence of any evidence in rebuttal, the learned trial Court was left with the evidence produced by the plaintiff/decree holder. Since the defendant had not denied the issuance of the cheque in question to the plaintiff, the onus to prove` Exh.P.1 (Cheque No, A4793389) was not so heavy on the plaintiff. He succeeded in discharging the onus put on him. The plaintiff not only himself appeared in support of his case but he also produced two other witnesses in whose presence money was borrowed by the appellant/defendant and the appellant had handed over the cheque in question to the plaintiff/decree-holder. In cross-examination, they held their ground and did not budge an inch from their stance. Their testimonies were consistent on all material aspects of the case. In short, their depositions could not be shattered and nothing favourable to the appellant/defendant could be elicited from them, in the course of cross-examination.
13. As noted in Paragraph No, 3 above, leave to defend was granted to the appellant on 20.1.2001 pursuant to a statement made by the learned counsel for the plaintiff/decree-holder. This indicated the trust the plaintiff has had in his cause. Furthermore, under Section 118 of the Negotiable Instruments Act, 1881, the Court is to (presume that the cheque was made out and drawn against consideration. No doubt, this presumption is rebutable, but unless this presumption is rebutted by leading cogent, convincing and confidence-inspiring evidence, the Court might place implicit reliance upon the negotiable instrument, on the basis of which the suit was filed.
14. In the case of "Muhammad Akhtar u. Zahar Khan" (2006 CLD 737), this Court held as under: "It is settled principle of law that under Section 118 of Negotiable Instruments Act, 1881, there is an initial presumption that negotiable instrument is made, drawn, accepted and endorsed for consideration although this presumption is rebutable yet it is settled law that the onus is on the person denying consideration to allege and prove the same as the law declared by the Honourable Supreme Court while interpreting aforesaid provision of law in Haji Karim's case 1973 SCMR 100."
15. In the case of "Muhammad Arshad and another v. Citibank N.A., Lahore" (200 SCMR 1347), the Honourable Supreme Court of Pakistan laid down that: "The learned Advocate Supreme Court on behalf of petitioners has ignored the fact that "person signing and delivering to another a paper stamped in accordance with law relating to stamp duty chargeable on negotiable instruments either wholly blank or having written thereon and incomplete negotiable instrument so that it may be made or completed into a negotiable instrument, prima facie authorizes recipient of such negotiable instrument to fill in required particulars. Presumption, held, would arise under Section 188(b) regarding a negotiable instrument bearing a data as having been made or drawn on such date". National Commercial Bank Ltd. v, Muhammad Younus Butt 1980 CLC 90. We are conscious of the fact that "party to proceedings could discharge burden of proof placed upon him under provisions of Section 118 of Negotiable Instruments Act, 1881 either by producing definite evidence showing that consideration had not been passed or by relying upon facts and circumstances of case and also by referring to flaws in evidence of plaintiff and then contending that presumption had been rebutted". Chandan Lal v.
Messrs Amin Chand Mohan Lal AIR 1960 Punjab 500; Sundar Singh v. Khushi Ram AIR 1927 Lahore, 864 which could not be done."
16. In the case of "Muhammad Azizur Rehman v. Liaqat Ali" (2007 SCMR 1820), the august Supreme Court of Pakistan elaborated the provisions of Section 118 of the Negotiable Instruments, 1881 as follows: "8. Similarly in the case of Haji Karim and another v. Zakir. Abdullah 1973 SCMR 100 this Court held that:-- "Under Section 118 of the Negotiable Instruments Act, 1881, there is an initial presumption that a negotiable instrument is made, drawn, accepted or endorsed for consideration. Although this presumption is a rebuttable presumption, yet the onus is on the person denying consideration to allege and prove the same."
10.(sic) In view of above discussion, we are of the view that burden of proof of non-payment of consideration where execution of a negotiable instrument was admitted would be upon executant of document in which appellant/defendant has failed."
17. The above statement of law found echo in the following judgments of Lahore High Court and Sindh High Court:- "(i) Azhar Hussain v. Muhammad lqabal (2003 CLD 521 Lahore).
(ii) Muhammad Ajmal Khan v. United Bdnk Limited (2004 CLD 1577 Lahore)
(iii) Messrs Mach Knitters (put.) Limited and 3 others v. Allied Bank of Pakistan Limited through Manager (2004 CLD 535).
(iv) Shell Pakistan Ltd. Through Attorney u. AERO Asia International (Put.) Limited through Chief Executive and another (2008 CLD 996 Karachi)
(v) Muhammad Adnan (Muhammad Irfan) u. Additional District Judge Hafizabad and another (2013 CLD 25 lahore).
(vi) Pak Petrochemical Industries (Pvt.). Limited through Chief Executive v. Syed Hamid Ali (2014 CLC 837).
(vii) Shell Pakistan Ltd. Through Attorney v. AERO Asia International Private Limited through Chief Executive and another (PLD 2008 Karachi 429).
(viii) Pak Petrochemical Industries (Put.). Limited through Chief Executive v. Syed Hamid Ali (2014 CLD 519 Sindh).
(ix) Sardar Ali Muhammad Khan v. Muhammad Ayyub (2014 CLD 193)."
20. It bears repeating that in the instant case, the defendant failed to rebut the statutory presumption raised under Section 118 of the Negotiable Instruments Act, 1881 in that he did not lead evidence in disproof of the assertions made in the plaint, and proved by the plaintiff by adducing evidence.
21. It is well-established law that civil and criminal proceedings might be carried out simultaneously. Therefore, if the decree-holder has got case FIR No, 122-2007 registered against the appellant on the basis of the cheque in question, the proceedings therein were to be conducted on its own merits. But the very registration of the case was no ground to stop the proceedings in the civil suit instituted by the respondent.
22. Since the appellant has not pointed out any specific, portion of the testimony of any of the witnesses produced by the decree-holder, which was either read out of context or misread or not read at all to the disadvantage of the appellant, the findings recorded by the learned trial Court cannot be interfered with, especially when the conclusions drawn by it are quite in accord with the evidence and the circumstances of the case. Resultantly, the findings recorded by the learned trial Court on all the issues are upheld.
23. For what has been stated above, this appeal being devoid of merits is hereby dismissed. There is no order as to costs.