AZIZ-UR-REHMAN, J.--- This is a suit filed by the plaintiff against the defendants for recovery of Rs.1,50,00,000 [Rupees One Crore and Fifty Lacs only] with the following prayers :---
(i) Pass Judgment and Decree against the defendants and in favour of the plaintiff for Rs.
1,50,00,000 [Rupees One Crore and Fifty Lacs] Principal/loan amount as per acknowledged liability dated: 9-9-2007/28-1-2008/25-3-2008 by the defendants along with any mark up which this Hon'ble Court deem fit and proper from the date of money lent till the final date of realization as the defendants has kept such a huge amount of money with them for several years and has utilized it for their benefits.
(ii) Grant any other relief/reliefs deem fit and appropriate by this Hon'ble Court in the circumstances of the case.
(iii) Grant cost of the suit.
2. Facts in brief resulting in filing of above suit against the defendants are as follows:---
3. That the plaintiff is a law-abiding citizen of Islamic Republic of Pakistan, working hard to keep his family together comprising his widow mother, two brothers and one sister. Out of them the two younger brothers are studying and the plaintiff as being an elder brother is responsible for looking after of his family.
4. The deceased father of the plaintiff was a highly qualified person, who lived abroad for twenty two years till his death. The father of the plaintiff, indeed, worked hard for the welfare of his family.
For many decades, per Plaintiffs assertions, he served in the reputed firms of Middle East till his death at Dubai on 23-6-2003.
5. The father of the plaintiff, as averred, invested a huge amount of his earnings/savings by purchasing 'Special Saving Certificates' and 'Regular Scheme Certificates' and also in other properties during his life time. Upon their father's death, his family also invested the inherited money in the same schemes. In this way, they purchased 'Special Saving Certificates' and 'Regular Scheme Certificates' worth of Rs.1,13,50,000 [Rupees One Crore Thirteen Lacs and Fifty thousand only] from July, 2000 till February, 2005. The all forty certificates earlier purchased were in the name of the deceased father of the plaintiff, the plaintiff himself, his mother and younger brothers who were holding the same certificates jointly and severally.
6. Moreover, the plaintiff also received an amount of Dirham 1,69,732 [One Lac Sixty Nine thousand Seven hundred and Thirty two Dirham only] approximately equivalent to Pak Rs.30,00,000 [Rupees Thirty Lacs only], after the death of his father from his account maintained at Emirate Bank International Dubai, Main Branch. Besides, the Plaintiff sold a family property on 24-4-2004 wherefrom a sum of 14.15,65,000 [Rupees Fifteen Lacs and Sixty five thousand only] was also received.
7. The 'Saving Certificates' and 'Defence Saving Certificates' etc. were encashed for and to give/advance 'friendly loan' to the defendants Nos.1 and 2. As such, an amounts of Rs.1,22,01,000 [Rupees One. Crore Twenty Two. Lacs and One Thousand only], Rs.31,00,000 [Rupees Thirty One Lacs only], per Cheque No.0049050 dated 14-2-2005, and Rs.10,00,000 [Rupees Ten Lacs, only] per Cheque No.0052121 dated 25-2-2005, issued by the State Bank/National Bank of Pakistan was received. Further, an amount of Rs.15,65,000 [Rupees Fifteen Lacs and Sixty Five Thousand only], Rs.5,00,000 [Rupees Five Lacs only], Rs.7,00,000 [Rupees Seven Lacs only], and Rs.53,36,000 [Rupees Fifty Three Lacs and Thirty Six Thousand only], per Cheque No.0061368 dated 9-3-2005, Cheque No.0062917 dated 21-3-2005, Cheque No.0063274 dated 25- 3-2005 and Cheque No.C122660 dated 21-3-2005 respectively issued by the State Bank/National Bank of Pakistan were also credited in the account of the plaintiff.
8. From all the above noted sources and other, savings, the plaintiff, had millions of rupees in his possession and this very fact, indeed, was known to the defendants Nos.1 and 2 who at the relevant time were living in the neighbourhood of the plaintiff and, of course, were very much sympathetic with the plaintiff and his other family members. In this way they won their hearts and alWays used to visit the plaintiffs house. On account of becoming so nearest to the plaintiff and his family, they consequently asked the plaintiff, for a 'friendly loan' for increasing their business. Keeping in view, the close friendship, family understanding, the plaintiff thus trusted them in good faith [i.e. From January, 2005 till December, 2006]. Resultantly, gave them Rs.1,50,00,000 [Rupees One Crore and Fifty Lacs only] as 'friendly loan'.
9. The details of payment paid through Pay Orders is as under:-
(1) Pay Order No./Control No.593490 of Rs.15,47,000 [Rupees Fifteen Lacs and Forty Seven thousand] dated 14-3-2005. Prepared by Prime Commercial Bank/RBS Ltd. SD-5/G, Almas Square, North Nazimabad Karachi from his Account No 0508 02002415.
(2) Pay Order No./Control No. 637098 of Rs.5,00,000 [Rupees Five Lacs] dated 31-3-2005. Prepared by Prime Commercial Bank/RBS LtdSD-5/G, Almas Square, North Nazimabad Karachi. From his Account No 0508-02002415.
(3) Pay Order No.P-0321020 of Rs.7,00,000 [Rupees Seven Lacs] dated 21-4-2005. Prepared by Habib Bank Ltd. Barkat-e-Hyderi Branch, North Nazimabad Karachi. From his Account No.24654-4.
(4) Pay Order No.0731787 of Rs.53,00,000 [Rupees Fifty Three Lacs] dated 26-12-2005. Prepared by Prime Commercial Bank/RBS Ltd SD-5/G, Almas Square, North Nazimabad Karachi. From his Account No.0508-02002415.
(5) Pay Order No.0829652 of Rs.17,00,000 [Rupees Seventeen Lacs] dated 17-7-2006. Prepared by Prime Commercial Bank/RBS Ltd SD-5/G, Almas Square, North Nazimabad Karachi. From his Account No.0508-02002415.
Total amount of the Pay orders is Rs.97,47,000]
10. The details of the payment paid through Cheques is as follows:---
(1) Cheque No. C4698918 of Rs.7,00,000 [Rupees Seven Lacs] dated 29-12-2005. Issued from Prime Commercial Bank/RBS Ltd. SD-5/G, Almas Square, North Nazimabad Karachi. From his Account No.0508-02002415.
(2) Cheque No.C4698924 of Rs.8,30,000 [Rupees Eight Lacs and Thirty thousand] dated 20-4-2006.
Issued from Prime Commercial Bank/RBS Ltd. SD-5/G, Almas Square, North Nazimabad Karachi.
From his Account No.0508-02002415.
(3) Cheque No.3570830 of Rs.4, 00,000 [Rupees Four Lacs] dated 4-3-2005. Issued from Habib Bank Ltd. Barkat-e-Hyderi Branch, North Nazimabad Karachi. From his Account No.24654- 4.
(4) Cheque No. C4698921 of Rs.1,90,000 [Rupees One Lac and Ninety thousand] dated 31-1-2006.
Issued from Prime Commercial Bank/RBS Ltd. SD-51G, Almas. Square, North Nazimabad Karachi.
From his Account No. 0508-02002415.
[Total amount of the aforesaid cheques comes to Rs.52,53,000.
11. Apart from the above, per plaintiffs assertions, a sum of Rs.31,33,000 [Rupees Thirty One Lac and Thirty three thousand only] was also given to the defendants Nos.1 and 2 as friendly loan in cash, on different dates.
12. The defendants after availing the 'Friendly Loan' shifted their residence to defence i.e. House No.11/13-C, Badar Commercial, Phase V, DHA, Karachi. After passage of considerable period of time, the plaintiff, requested the defendants Nos.1 and 2 for returning of the money borrowed by them from the plaintiff as 'Friendly Loan' but the defendants despite promise failed and/or avoided to repay the friendly loan availed by them. The plaintiff tried his level best to get the money back without souring the relationship/friendship but all in vain.
13. Nevertheless, after efforts and struggle the defendants Nos.1 and 2 issued four cheques of worth Rs.1,04,00,000 [Rupees One Crore and Four Lacs only] i.e. [i] Cheques No.2181487 dated 8-12-2008.
Of Rs.35,00,000 [Rupees Thirty Five Lacs only], [ii] Cheque No.2181488 dated 27-12-2008 of Rs.10,00,000 [Rupees Ten Lacs only], [iii] Chequer No.2181487 dated 5-1-2008-of Rs.50,00,000 [Rupees Fifty Lacs only] issued by defendant No.1 from his Account No.5451000165, MCB Zamzama Branch DOHA and [iv] Cheque No.7333165 dated 26-1-2008 of Rs.7,00,000 [Rupees Nine Lacs only] issued by defendant No.2 from his Account No.5451000165 from MCB Zamzama Branch DOHA. All the aforesaid four [04] cheques were, however, on presentation to the drawee bank were dishonoured/bounced on 4-1-2008, 3-1-2008, 8-1-2008 and 28-1-2008 respectively with remarks 'Not Arranged for.
14. Regardihg dishonored cheques, the plaintiff also lodged FIR No.47/2008 dated 18-3-2008 in P.S. Clifton, Karachi. Per assertions in the said FIR the defendants Nos.1 and 2 were challaned under section 487-F, P.P.C. And the Criminal Case No.2873/2008 in the Court of. J.M. 1st South Karachi, according to the Plaintiffs version, is still pending.
15. The defendant No.3 as being real brother of defendants Nos.1 and 2, on 25-3-2008, voluntarily acknowledged the liability owed to the plaintiff in the sum of. Rs.1,50,00,000 [Rupees One Crore and Fifty Lacs only]. Not only this he also issued a post dated Cheque No.3288724 dated 25-4-2008 of Rs.5,00,000 [Rupees Five Lacs only] to the plaintiff from his Account No.0000006808 MCB Badar Commercial Branch, Street No.1, Survey No.26, Phase V, DHA, Karachi. The said cheque, nonetheless, on presentation was dishonoured/bounced on 26-4-2008 with remarks 'Not Arranged For'. Against such dishonor of the cheque an FIR No.420/2008 dated 28-8-2008 was lodged against the defendant No.3. The case, per learned counsel, has already been challaned under section 487-F, P.P.C. And Criminal Case No.4085/2008 is still pending in the Court of J.M. IV, South Karachi against defendant No.3.
16. Moreover, the defendants Nos.1 and 2 have also acknowledged the liability in the sum of Rs.1,50,00,000 [Rupees One Crore and Fifty Lacs only] payable to the plaintiff on 7-7-2007 by way of writing on a stamp paper has been duly signed and executed by the defendants Nos.1 and 2 on 7- 7-2008. The same has also been duly attested by 'NOTARY PUBLIC' on 7-7-2008. Besides on 28-1- 2008 upon dishonouring/ bouncing of the last cheque again on a stamp paper the same was acknowledged by defendants Nos.1 and 2 and the same 'HALAF NAMA' was also attested by 'JUSTICE OF PEACE'.
17. Despite the above, the defendants failed/and or avoided to repay the 'Principal loan amount' within the period of two months as was undertaken and acknowledged by them. The plaintiff under the aforesaid scenario, was kept on false hopes and 'pretexts' viz-a-viz the payment of the loan amount. The 'cause of action', per averments, was accrued in favour of the plaintiff and against the defendants on the dates mentioned in para 14 of the plaint. Hence this suit.
18. Upon service, Messrs Mansoob Ali Qureshi & Co., Advocates filed their Vakalatnama on 17-4-2011 but despite engaging lawyers, the defendants, nonetheless, neglected/failed and/or avoided to file any 'written statement' notwithstanding the opportunities afforded to the defendants.
19. From the record, it transpires that on 20-7-2011 the learned counsel for the defendants had filed an application under Rule 50 Sindh Chief Court Rules [O.S.] for discharging of his /their Vakalatama. In the notice dated 12-11-2013 next date i.e. 18-11-2011 was also notified to the Defendants. It is worth to note that per 'Diary Sheet' of Additional Registrar [O.S.] of 18-5-2011 'intimation notice' was also issued to the learned counsel, for the defendants for filing of proper 'written statement'. Despite 'Intimation Notice' neither any 'written statement' was filed nor any application was filed for treating the application under Order XXXVII, Rule 3, C.P.C. As their 'written statement'. Under these circumstances, on 18-11-2011 when the above case came-up before the court then the following order was passed:--- Mr. Aamir Mansoob Qureshi, advocate for defendant through the listed application has prayed for withdrawal of his vakalatnama. Along with the application notice dated 12-11-2011 intimating the defendant of today's date of hearing has been annexed. Application is allowed and the vakalatnama of Mr. Aamir Mansoob Qureshi, advocate is discharged. Since the defendant was served and the counsel was engaged who has been discharged in accordance with Rule 50 of Sindh Chief Court Rules neither the defendant effected appearance nor have engaged any counsel.
There is no need to issue further notice:The name of Mr. Aamir Mansoob Qureshi, advocate be deleted from the file. [Underlining is mine].
Let the matter be fixed for further orders accordingly.'
20. On 24-7-2012 when again the suit came-up before the court for 'ex parte order' against the defendants then the suit was ordered to proceed 'ex parte' against the defendants. Being relevant, order dated 24-7-2012 is reproduced as follows:- Despite service of summons the defendants have failed to effect appearance. The record reflects that Mr. Mansoob Ali Qureshi had effected appearance on behalf of all defendants but subsequently he withdrew his vakalatnama by filing a proper application under Rule 50 of Sindh Chief. Court Rules. In the circumstances, non-appearance of the defendants appears to be deliberate. Let the suit be proceeded ex pane against the defendants.' [Underlining is mine].
21. Subsequently, upon filing 'affidavit in ex parte proof' on 10-4-2013, 'PW-1's [viz. Muhammad Junaid Pasha son of Muhammad Qadoos Pasha] 'examination-in-chief' was recorded. The 'PW-1' in his 'examination-in-Chief produced 'affidavit-in-ex parte proof' as Exh.' PW-1/3' and other documents as Exhs.'PW1/4' to 'PW-1/13' Apart from the exhibits other documents were also produced and marked as 'PW-1/X' to `PW-1/X-11 to 'PW-1/X-66'. Since neither the defendants nor the defendants' counsel was present on 18-4-2013 to 'cross-examine' the witness, therefore, 'cross- examination' of 'PW-1' to the defendants was marked as 'Nil' and consequently, the plaintiff's side of evidence was closed.
22. On 16-5-2014 when the case came-up before me, I heard Mr. Muhammad Saleem Ibrahim, learned counsel for the plaintiff and with his valuable assistance also gone through the available record i.e. Inter alia Exii.'PW-1/4' to Exh. 'M-1/13' and other documents produced in evidence and marked as 'X' to ' X-1/66'
23. Mr. Muhammad Saleern Ibrahim, reamed counsel for the plaintiff vehemently argued that the instant suit inter alia is based on five [5] dishonoured cheques issued by defendants Nos.1 to 3 in favour of the plaintiff. The details of the five cheques are as under:-- Sr.Cheque No.Amount Issued byCheques and No.with date Return . Memo. with date Produced and marked as 1.2181487 datedRs.35,00,000DefendantPW-1/X-50 8-12-2008 No.1 and PW- 1/X-51 dated 4-1-2008
2. 2181488 dated 27-12-2008Rs.10,00,000 -do- PW-1/X-52 and PW.1/X-53 dated 3-1- 2008 3.2181488 datedRs.50,00,000-do- PW-1/54 5-1-2008 and PW1/X/55 dated 8-1-2008 4.8333165 datedRs.7,00,000 DefendantPW-1/X/56 26-1-2008 No.2 and PW.1/X/58 dated 28-1-2008 5.3288724 datedRs.5,00,000 DefendantPW-1/X-66 25-4-2008 No.3 and PW .1/X-65
24. Mr. Muhammad Saleem Ibrahim, learned counsel for the plaintiff while, dilating upon the issue of dishonouring of the aforesaid cheques for the reason 'Not Arranged For', submitted that, no doubt, the instant suit is filed as an 'ordinary civil suit' for recovery of Rs.150,00,000 [Rupees One- Crore and Fifty Lacs only) instead of a 'Summary Suit' under Order XXXVII, C.P.C. But such filing of the suit is not prohibited under law. Despite the return of the cheques by 'drawee bank' the defendants even thereafter failed to make payment. Upon a court query, whether after return of the dishonoured cheques the same were presented again or not at the drawee bank and whether any notice was served upon the defendants. In response the learned counsel, forcefully contended that the plaintiff was not under any legal obligation to present the dishonoured cheques at the drawee bank again or otherwise, the plaintiff was bound to serve notice in writing to the defendants. The intention of the Defendants from the words 'Not Arranged For' was quite visible. Per learned counsel section 72 of the Negotiable Instruments Act, 1881 [XXVI of 1881] which deals with dishonouring of cheques provides that a cheque will be deemed as dishonoured by non-payment.
25. Mr. Muhammad Saleem Ibrahim, learned counsel for the plaintiff further contended that under section 118 of the Negotiable Instruments Act, 1881 [XXVI of 1881] a presumption is attached to a negotiable instrument, as to receipt of consideration as to date of execution, as to time for acceptance, as to time of transfer, as to order of endorsement, as to stamp and that holder is a bolder in due course unless contrary is proved. Indeed it is settled preposition of law where statutory presumption is attached to an instrument then any person setting up a plea of rebuttal otherwise, must to prove, the same. As far as the instant case is concerned there is no proof of rebuttal as the defendants have failed to lead any evidence.
26. On this aspect of the matter reliance can be placed on the case of Muhammad Sabir v. Khalil- Ur-Rehman [2002 CLD 1545] wherein regarding statutory presumption attached to a negotiable instrument under section 118 of the Negotiable Instruments Act, 1881 [XXVI of 1881], it was observed as follows:- "...Section 118(a) of the Act lays down a special rule of evidence contrary to the general rule of burden of proof as already discussed above. Burden to dispel statutory presumption is always on a party seeking to negotiate or rebut the presumption as to existence of consideration...."
27. No doubt, the instant suit inter alia is based on the dishonoured cheques but the Plaintiff instead of filing a suit for recovery under Summary Chapter [i.e. Order XXXVII, C.P.C.] has chosen to file this civil suit for recovery of the outstanding amount. Nevertheless, such option is permissible under Order XXXVII, C.P.C. As Rule 2 of Order of XXVII, C.P.C. Vests a discretion in the plaintiff. For proper appreciation Order XXXVII, Rule 2, C.P.C. Is reproduced as follows:---
2. Institution of summary suits upon bills of exchange, etc.--- (1) All suits upon bills of exchange hundies or promissory notes, may, in case the plaintiff desires to proceed hereunder be instituted by presenting a plaint in the form prescribed; but the summons shall be in Form No.4 in Appendix B or in such other form as may be from time to time prescribed. [Underlining and emphasis supplied].
(2) In any case in which the plaint and summons are in such forms respectively, the defendant shall not appear or defend the suit, unless he obtains leave from a Judge as hereinafter provided so to appear and defend; and in default of his obtaining such leave or of his appearance and defence in pursuance thereof the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree--- [(a) for the principal sum due on the instrument and for interest calculated in accordance with the provisions of section 79 or section 80 as the case may be of the Negotiable Instruments Act, 1881 up to the date of the institution of the suit or for the sum mentioned in the summons whichever is less and for interest up to the date of the decree at the same rate or at such other rate as the Court thinks fit; and
(b) for such subsequent interest if any as the Court may order under section 34 of this Code; and
(c) for such sum for costs as may be prescribed: Provided that if the plaintiff claims more than such fixed sum costs the costs shall be ascertained in the ordinary way.
(3) A decree passed under this rule may be executed forthwith."
28. Keeping in view the words may, in case the plaintiff desires to proceed hereunder, indeed, vests discretion in the plaintiff regarding the remedy available under Order XXXVII, Rule 2(1), C.P.C.
However, the filing of an ordinary suit based on a Negotiable Instruments in no manner deprive the plaintiff of the benefits of statutory presumptions attached to a Negotiable Instrument under section 118 of the Negotiable Instruments Act, 1881 [XXVI of 1881].
29. In the case of Syed Kausar Abbas Shah v. Sardar Khan [2005 YLR 3321] while dilating upon the aforesaid aspect of the matter it was observed as follows:--- "5. Cheques are special instruments regulated by Negotiable Instruments Act of 1881. Special rules of evidence as contained in section 118 of the said Act state that:--- "Until the contrary is proved, the following presumption shall be made
(a) Of consideration that every Negotiable Instrument was made or drawn for consideration and that every such instrument when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration; (b).............
(c)...............
When the law prescribed that presumption shall be attached to a particular fact, the said fact has to be a presumed to be true unless otherwise is proved by the party alleging the same. The learned counsel for the petitioner referred to the plaint which was merely a civil suit and not a suit under Order XXXVII, C.P.C. And argued that the presumptions contained in the Negotiable Instruments Act shall not be applicable because it was only a civil suit and the responsibility of the plaintiff to prove his case in accordance with the standards of legal requirement could not be avoided. I am afraid, this argument is not available because Order XXXVII, C.P.C. Merely provides an option to the plaintiff to avail the remedy of summary trial where the suit is filed before the principal Court of original civil jurisdiction in the District and special process under the said Order is issued and the defendant is not entitled as a matter of right to defend the case or to file written statement. He has to obtain leave of the Court and if granted, he can defend the suit with reference to such extent. However, if the defendant chooses to avail the remedy through the normal civil suit, he can do so because Rule 2 of Order XXXVII, C.P.C. Provides that "all suits upon bills of exchange, Hundies or promissory note may in case the plaintiff desires to proceed hereunder, be instituted by presenting a plaint in the form prescribed". Hence the term in case the plaintiff desires to proceed hereunder gives an option to the plaintiff to avail the benefit of Order XXXVII, C.P.C. Where the form as well as the procedure is different than the normal civil suit but if he desires not, to, proceed under Order XXXVII, C.P.C. To file a civil suit under the normal procedure, he can do so. The provisions of the Negotiable Instruments Act shall still be applicable even if the suit is filed in the civil Court because the Negotiable Instruments Act is not dependent on Order XXXVII, C.P.C. Only The provisions thereof are independent and can be availed even in the normal civil Courts. The presumption under section 118 of the Act, as stated above, is attached to every negotiable instrument irrespective of the form of the plaint or the forum where the remedy was being sought.
6. The term "until the contrary is proved" in the beginning of section 118 indicates that it shall be the responsibility of the person, who claims that the instrument was executed without consideration, to prove the reasons why it was so executed. Once this is done, the onus is shifted to the holder of the instrument..."
30. Mr. Muhammad Saleem Ibrahim, learned counsel for the plaintiff further contended that all the defendants have failed to adduce any evidence. In absence of any rebuttal the plaintiff's suit deserves to be decreed as prayed in view of the presumption attached to a negotiable instrument, under the Negotiable Instruments Act, 1881. Importantly the presumption in the instant case has not been dispelled. It is significant to note that pleadings by themselves are not evidence and burden of proof is on the party who alleges claim in plaint or in 'written statement'. Manifestly, in the case in hand, the plaintiff, no doubt, has discharged his onus of proof by way of leading evidence and producing various original documents i.e. [Exh.'PW-1/4' to Exh.'PW-1/13']. Besides other documents of which copies have been brought on record, per learned counsel, the originals thereof are in custody of Police/produced in 'Criminal Cases' No.2873 of 2008 and 4085 of 2008. On the other hand, the defendants have failed and/or avoided to come forward and rebut the claim of the plaintiff as false and not maintainable under law. Moreover, non 'cross-examination' of the plaintiff [PW-1] also gives/creates a positive presumption of correctness regarding evidence adduced by the plaintiff [`PW-1]. In the case of Muhammad Yasin v. Shabbir Ahmed [1785 CLC 2111], it was held as under:--- "6. ... That if there is no cross-examination on fact deposed in examination-in-chief the presumption is that evidence is deemed to have been accepted by the party against whom it was given..."
31. Likewise, in the case of Muhammad Nazir Khan v. Muhammad Ameer [2012 CLC 644] wherein it was observed as follows:---
8. .... Under Article 133 of the Qanun-e-Shahadat Order, 1984, cross-examination of witness is a right of adverse party and if a particular portion of the statement of a witness is not cross- examined, that is deemed to be admitted true. The rule of law laid down in the case reported Islamuddin and others v. Ghulam Muhammad and others [PLD 2004 SC 633] is correct. Similar view has been expressed by this Court in number of cases that if the statement of any witness goes against the defendant and he fails to cross-examine on that point, then the point will be deemed to be admitted but there is nothing stated in the statement of plaintiff which was not cross-examined." [Underlining is mine].
32. Also it is significant to note that in the case of Malik Umar Aslam v. Sumaira Malik and another PLD 2008 SC 362 the Hon`ble Supreme Court of Pakistan while, considering the question of verification of the pleadings on 'oath', observed as follows:--- "It may not be out of context to note that the verification of the pleadings on oath was introduced by the Law Reforms Ordinance (XII of 1972) read with section 6 of the Oaths Act, 1873, by adding the words "on oath or solemn affirmation" after the words verified in Rule 15(i) of Order VI, C.P.C. It is also pertinent to note that after the said importance of the same amendment in presence of verified pleadings on oath, the court has been empowered to proceed case ex parte against the opponents and pass a decree, under Order IX, Rule 6(1), C.P.C. Without calling for an affidavit in ex parte proof [underlining is mine].
33. In the case in hand nevertheless, the plaintiff adduced his evidence by way of filing 'affidavit-in- ex parte proof' and also produced various documents in his 'deposition' recorded on 18-4-2013.
Nonetheless, the plaintiff [PW-1] was not 'cross-examined' or otherwise, in rebuttal, any evidence was led by the defendants or any of them. The plaintiffs claim thus have gone un-challenged/un- rebutted.
34. As far as the pendency of two criminal cases i.e. Criminal Case No.2873 of 2008 under section 487-F, P.P.C. Against defendants Nos.1 and 2 in the Court of Ist Judicial Magistrate (South), Karachi and Criminal Case No.4085 of 2008 also under section 489-F, P.P.C. Against defendant No.1 in the Court of Judicial Magistrate IV, South Karachi are concerned, it is suffice to say that a civil case cannot be halted to proceed on its merits merely because some criminal proceedings relating to the same transaction are pending. Such pendency of cases, of course, was never considered a bar to maintainability of civil proceedings. No doubt, both the cases can proceed concurrently because conviction for B 'criminal offence' is absolutely different matter as far as the civil liability is concerned. The sprit and purpose of criminal proceedings is to punish the offender for 'commission of crime' while the purpose behind the civil proceedings is to enforce civil rights. Both proceedings in law can co-exist and proceed simultaneously. Under circumstances, on this score as well the suit as farmed and filed by the Plaintiff beside competent in law is quite maintainable.
35. On this aspect of the matter reliance is placed on the case of Seema Fareed and others v. The State and another [2008 SCMR 837] wherein it was held as follows:--- "4. .... It is well-settled that, a criminal case must be allowed to proceed on its own merits and merely because civil proceedings relating to same transaction have been instituted it has never been considered to be a legal bar to the maintainability of criminal proceedings which can proceed concurrently because conviction for a criminal offence is altogether a different matter from the civil liability. While the spirit and purpose of criminal proceedings is to punish the offender for the commission of a crime the purpose behind the civil proceedings is to enforce civil rights arising out of contracts and in law both the proceedings can co-exist and proceed with simultaneously without any legal restriction."
36. Besides in the case- of Muhammad Saleem and 2 others v. Khuda Bux and 4 others [ 2013 M LD 266], it was held as follows:- "10. In light of the dicta laid down by the Hon'ble. Supreme Court, reproduced above, the standard of proof in civil and criminal cases is quite different. In a civil suit, the Court has to see only probability of truth whereas in criminal proceedings, the prosecution has to prove the alleged offence "beyond reasonable doubt" and if there is any doubt, the accused is entitled to its benefit not as the matter of grace or concession, but as of right. Reference may also be made to the case of Tariq Pervaiz v. The State (1995 SCMR 1345). The agitated point raised by the learned counsel for the applicant is therefore, having no sanctity in the eyes of law."
37. In the instant case admittedly the loan was advanced by the plaintiff to the defendants Nos.1 and 2. Now the question needs consideration is whether advancing of loan without holding licence granted under Section 3 of the West Pakistan Money Lenders' Ordinance [XXIV of 1760] does or does not amount to engagement in money lending business. Investments of savings, it is worth to note, do not necessarily, amount to money lending business if such investments are few and often made to relatives or friend, however, if such investments by way of advancing loan are frequently made in the shape of regular C money lending business coupled with gain also then, of course, such `advancing of loan' would constitute engagement in money lending 'business and consequently would be prohibited. What does or what does not constitute money lending business is a matter absolutely depending upon the facts and circumstances of each. Nevertheless, as far as the case in hand is concerned, on the face of record it does not fall within the ambit of money lending business as prohibited under West Pakistan Money Lenders Ordinance, 1760 [XXIV of 1760].
38. Regarding this aspect of the matter reliance is placed on the case of Muhammad Asim Tiwana v. Syed Shaukat Hussain Rizvi and 6 others [1777 CLC 1177] wherein is was held as under:- "6. ...The license under the Money Lending Ordinance was only required if a person was lending money to different persons and was carrying on business as such. However, whenever two parties enter into a business contract for the A benefit of both the sides, it cannot be said that it was a money lending."
39. Per Mr. Muhammad Saleem Ibrahim, despite service the defendants have failed and/or ignored to appear and to contest the suit. The averments made in the plaint and evidence led by 'PW-1' has thus gone unrebutted/unchallenged. The issuance of cheques by the defendants in favour of the plaintiff is a sufficient proof of the loan advanced and the amount outstanding. Per learned counsel. Section 118(a) of Negotiable Instruments Act, 1881 [XXVI of 1881] creates a presumption regarding Negotiable Instruments Act inter alia its' due execution for valuable consideration. All the cheques and pay orders in the sum of Rs.1,50,000 i.e. Loan amount were debited/shown in the statements of accounts i.e. Exh.PW-1/8' and Exh. 'PW-1/7'. The loan amount in the sum of Rs.1,50,00,000 [Rupees One Crore and Fifty Lacs only] was not only acknowledged by issuing Five Cheques Detailed' hereinabove but also, acknowledged the same in writing on stamp papers of 7- 7-2008 and 28-8-2008. Both documents [Exh.'PW-1/12' and Exh.'PW-1/131 were not only signed and executed by the defendants but also attested by 'NOTARY PUBLIC' and 'JUSTICE OF PEACE'.
40. The averments made in the plaint, 'affidavit-in-ex parte proof' and documents produced by 'PW-1' in his 'deposition' recorded on 18-4-2013 since have gone un-rebutted/un-challenged as such the plaintiff has fully succeeded to establish his claim against the defendants.
41. In view of above discussion, the plaintiffs' suit is decreed in the sum of Rs.1,50,00,000 [Rupees One Crore and Fifty Lacs only]against the defendants Nos.1 and 2 jointly and severally plus markup 010% per annum from the date of institution of the suit i.e. 12-1-2011 till realization of the decretal amount. As far as defendant No.3 is concerned, under the facts and circumstances of the case, defendant No.3 is liable only to the extent Rs.5,00,000 [Rupees Five Lacs only] plus markup 10% per annum from the date of institution of the suit till realization out of. Rs.1,50,00,000 [Rupees -One Crore and Fifty Lacs only].
42. Consequently the Plaintiff's suit stands deereed in the aboye terms with costs.