KHALID MAHMOOD MALIK, J: The defendant has brought this appeal under section 96 of C.P.C. To assail the judgment and decree dated 30.09.2009, passed by learned Additional District Judge, Sadiqabad, District Rahimyar Khan whereby he decreed the suit of respondent for recovery of an amount of Rs.8,50,000/- against appellant on the basis of cheque.
2. Precisely, necessary facts for disposal of lis in hand are that plaintiff (hereinafter called as respondent) filed a suit for recovery of Rs.8,50,000/- on the basis of cross cheque No.348098, bearing account No.1139-04, Habib Bank Limited Jamaldin Wali, Tehsil Sadiqabad Branch, stating therein that defendant (hereinafter called as appellant) obtained Rs.8.50,000/- as a loan from respondent with the condition that it would be returned within few months; when respondent approached appellant for repayment of debt amount, he sought further time and lingered on the matter on one pretext or the other; that respondent approached the concerned bank for deposit of crossed cheque; the official of the bank refused on the plea that after three months cheque could not be encashed. The appellant put his appearance before the learned trial Court and filed an application for leave to defend the suit which was allowed vide order dated 15.07.2004 subject to furnishing surety bond. In consequence, appellant filed written statement in which he has controverted the averments made in the plaint and pleaded that respondent was owner of agricultural land who entered into oral sale agreement; as sale consideration a cheque was handed over to respondent on the basis of confidence and previous transaction pertaining to agricultural land of respondent in favour of appellant; later on sale agreement could not be matured and as per condition, respondent was bound to return the cheque in question; when he demanded his cheque, respondent assured him that it will be torn and destroyed; on legal side, the appellant also raised preliminary objections. On pleadings, learned trial Court framed following issues:
1. Whether the plaintiff is entitled to recover Rs.8,50,000/- from the defendant on the basis of cheque in question? OPP.
2. Whether the cheque in question was not presented to the concerned bank for encashment. If so, its legal effect? OPD.
3. Whether the cheque in question was issued by the defendant in connection with the transaction of purchasing agricultural land which could not be matured, hence, cheque in question was without consideration? OPD.
4. Whether this Court lacks territorial jurisdiction to take cognizance of the present suit? OPD.
5. Relief.
3. Both parties led their pro and contra evidence. From therespondent's side, plaintiff Sh. Abdur Rehman appeared as PW-Amanullah as PW-2. In documentary evidence he produced cheque in question Ex.P-1. In rebuttal, Masood Ahmad, general attorney of appellant appeared as DW-1 and produced Muhammad Ajmal DW-2 and Fateh Muhammad DW-3. In documentary evidence, appellant tendered general power of attorney as Ex.D-1. After appraising of evidence, learned Additional District Judge decided issue No.1 in favour of respondent whereas findings qua issues No.2 to 4 were recorded against appellant and decreed the suit in favour of respondent vide impugned judgment and decree dated 30.09.2009. Hence, this appeal.
4. Learned counsel for the appellant has assailed the judgment and decree mainly on the grounds that learned trial Court has not appreciated the relevant provisions of law i.e. Sections 6, 72 and 84 of the Negotiable Instruments Act (XXVI of 1881); that from the plaint and statement of plaintiff (PW- 1) it was cleared that in this case, cheque (Ex.P-1) was not presented for payment in the concerned bank; when cheque has not been presented, no cause of action was available to respondent, therefore, suit was not maintainable and liable to be dismissed.
5. Conversely, learned counsel for respondent has supported impugned judgment, decree and pleaded that appellant has admitted the execution of cheque in-question (Ex.P-1); presumption is attached to cheque for being negotiable instrument in terms of section 118 of ibid Act; that onus to prove that the cheque was without consideration lies upon appellant and appellant has failed to do so; that there is no misreading, non-reading of evidence and illegality in the impugned judgment and decree.
6. Arguments canvassed by the appellant's counsel have substance and find fortification from the provisions of Sections 6, 72 and 84 of the Negotiable Instruments Act (XXVI of 1881). In this case admittedly cheque in question was issued and delivered to respondent on 25.12.2000 and suit was filed on 24.12.2003, one day before prescribed period of limitation for recovery suit under Order XXXVII of C.P.C. i.e. Three years. In cross-examination, respondent admitted that he has not deposited cheque in question in the concerned bank as the appellant promised him that he would take the cheque back after payment of amount. He further admitted that cheque (Ex.P-1) was issued as security which was cross cheque. The relevant portion of his cross-examination is reproduced: {{ URDU TEXT }} From the plaint and statement of the plaintiff (PW-1) it is clear that cheque (Ex.P-1) was not presented in the bank for payment from issue date of cheque i.e. 25.12.2000 to 24.12.2003 till filing of the suit. Sections 6 and 72 of the Negotiable Instruments Act (XXVI of 1881) are reproduced as under:
6. "Cheque." A "cheque" is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand.
72. Presentment of cheque to charge drawer.[Subject to the provisions of section 84,] a cheque must, in order to charge the drawer, be presented at the bank upon which it is drawn before the relation between the drawer and his banker has been altered to the prejudice of the drawer."
7. As per Section 6 of the Negotiable Instruments Act (XXVI) of 1881, the cheque is only payable on demand and cause of action arose only when specific demand is not honoured. When there is no demand then there is no question of dishonour of demand. When the cheque has not been presented for payment then in the light of Section 72 read with Section 84 of the ibid Act, there was no refusal by the drawer or the bank for the payment of cheque. In consequence, no cause of action accrued to the plaintiff for filing of suit under Order XXXVII of the C.P.C. Besides the aforementioned facts, during the course of arguments, it is observed that as per policy/procedure of the bank, a cheque is to be presented within six months from its date of issue and a cheque presented more than six months after the ostensible date of its issue, is to be considered a stale one. Relinace in this regard is placed on cases titled "Khalifa Azhar Mumtaz Vs. Ghulam Akbar" (2014 CLC 1448) and " Habib Bank Limited Vs. Jamilur Rehman ( 1994 M LD 271 [Karachi]) .
8. As per contentions of learned counsel for the appellant that respondent has failed to discharge the onus and his plea as alleged in the written statement is concerned, now, it is well settled principle of law that the plaintiff is bound to succeed on the basis of his own evidence and not on the basis of weakness of the evidence of defendant. Reliance in this regard is placed on the case titled "Mst. Zainab Vs. Majeed Ali and another" (1993 SCM R 356). In view of above discussed facts, findings of learned trial Court upon issues No.1 to 3 are not valid and, therefore, the same are reversed.
9. In view of above discussed facts, this appeal is accepted and impugned judgment and decree passed by learned Additional District Judge, Sadiqabad is set aside. In consequence, suit of respondent is dismissed with no order as to costs being not maintainable.