' AMIN-UD-DIN KHAN, J.---Through this appeal appellant has challenged the judgment and decree dated 31-3-2014 passed by learned Additional District Judge, Sargodha whereby suit. Filed under Order XXXVII of the C.P.C. On the basis of a cheque for the recovery of Rs.7;15,00,000 has been decreed.
2. Brief facts of the case are that on 8-2-2011 plaintiff-respondent filed a suit for recovery of Rs.7,15,00,000 on the basis of cheque. The application for leave to defend the suit filed by defendant-appellant was accepted vide order dated 22-2-2012 and the appellant-dependant filed written statement. Learned trial court on the basis of written statement on 11-4-2012 framed the following issues:- "(1) Whether the defendant got Rs. 7,15,00,000 from the plaintiff and sold the land measuring 31/2 squares before witnesses? OPP
(2) Whether the defendant refused to transfer the said land and cheque No, 1314686 in account No, PLS-0110220915 of Allied bank, Sargodha was handed over to the plaintiff and which was dishonored on its presentation from the concerned bank? OPP
(3) If issues Nos. 1 and 2 are proved by the plaintiff then whether the plaintiff is entitled to get the decree as prayed for? OPP
(4) Whether the suit is false and frivolous and the defendant is entitled to get the special cost? OPD
(5) Relief."
' The parties were invited to produce their evidence. Both the parties produced their respective oral as well as documentary evidence. Vide Judgment and Decree dated 31-3-2014 learned trial court decreed the suit. Hence, this appeal.
3. Learned counsel for the appellant argues that when leave was granted and appellant- defendant was allowed to file the written statement, same was filed and the issues were framed, the suit becomes a regular suit. Argues that plaintiff was bound to prove the case pleaded in his plaint and prove the issues onus of which was upon the plaintiff-respondent. States that he miserably failed to prove the case pleaded by him and further that the learned trial court fell in error while ignoring the settled principle of law and has wrongly decreed the suit. States that issuance of cheque was never admitted by the appellant-defendant. The appellant only admitted his signatures upon the cheque but his case was that the same was stolen with the connivance of his driver. States that when there was continuous litigation between the parties to the suit, there was no question of payment of any money to the appellant by the respondent and no question of return of the same and issuance of cheque in question arises. Learned counsel has brought us to the documentary evidence produced by the appellant and read the documentary evidence in order to establish the case pleaded by the appellant and argues that the judgment and decree passed by the learned trial court are not sustainable under the law. While relying upon the case law argues that if only signatures have been admitted, the plaintiff-respondent was bound to prove the passing of the consideration which he miserably failed and therefore, decree is nullity in the eye of law without proving the passing of consideration.
4. On the other hand, learned counsel for the respondent argues that there are contradictions in the assertions of the appellant-defendant. Further that he has not proved the case pleaded by him. States that when the suit was filed for recovery on the basis of cheque which was given in the "Punchayat", therefore, there was no need to prove the case pleaded by the plaintiff prior to the event of issuance of cheque or the agreement to sell with regard to the property in favour of the plaintiff-respondent. Further states that in the litigation which was prior to the agreement to sell in favour of the plaintiff-respondent there were joint petitioners as well as respondents in the partition proceedings, therefore, there was no need to mention the agreement to sell in favour of the plaintiff-respondent with regard to the suit property. States that the judgment and decree passed by the learned trial court is in accordance with law and need not to be set aside and also relies upon the judgments of this Court as well as august Supreme Court of Pakistan with regard to the presumption attached with the Negotiable Instruments under section 118 of the Negotiable Instruments Act (XXVI) of 1881.
5. We have heard learned counsel for the parties and gone through the record minutely as well as case law, evidence of the parties and also the findings recorded by the learned trial court.
6. The case of the plaintiff-respondent that at the time of filing of the suit which was on 8th of February, 2011, 2-3/4 years prior the defendant who is real cousin of the plaintiff agreed to sell his owned 3-1/2 square of land situated in District Sargodha, District Jhang and District Hafizabad for a consideration of Rs.7,15,00,000 and received the amount before the witnesses but subsequently the defendant resiled and on the basis of mala fide some cases were filed before the revenue courts, therefore, plaintiff contacted with the defendant through respectables with the demand that either the property be transferred in his name or his paid money i,e, Rs.7,15,00,000 be returned whereafter the defendant before the witnesses Syed Nasir Abbas and Mazhar Hussain on 1-9-2010 issued a cheque in the name of the plaintiff for return of the consideration money. The cheque was submitted thrice in the bank in the account of the plaintiff, which was returned back for the first time on 3-9-2010 and then on 7-9-2010 and 9-9-2010 with the report that the funds are insufficient in the account of the defendant.
7. We have noticed that at the time of filing of the suit no court fee was paid and it is mentioned that court fee will be paid under the orders of the court. The list of witnesses has also been filed at the time of filing of the suit, which mentions the Manager ABL, Manager MCB, Syed Nasir Abbas, Mazhar Hussain and Syed Raza Hussain. In the written statement the case pleaded by the appellant-defendant is that para 2 of the plaint is correct to the extent of relationship but there was dispute between the parties with regard to the partition of the property joint between the parties, therefore, in May, 2008 the appellant-defendant filed an application for partition before the revenue authorities for partition of property joint between the parties situated in Chak No, 107 Janoobi Tehsil and District Sargodha. Plaintiff joined the proceedings and his stance was that the property has been partitioned amicably by the parties 25 years back. The plaintiff has not pleaded with regard to agreement to sell in his favour about the suit property, therefore, it is mentioned that all the story built for filing of the suit is false one. It is pleaded that since the year 2008 till filing of the suit in hand the proceedings before the revenue courts are continuously in progress and in the revenue courts the present plaintiff never pleaded about the agreement to sell in his favour or about the payment of the consideration amount, therefore, no question of issuance of cheque for return of the consideration amount received by the defendant arises.
8. As we have noticed that the learned trial court has not decided the matter issue-wise. When after submission of written statement proper issues were framed, it was the duty of the learned trial court to decide the matter issue-wise. When normal procedure is deviated there is a chance of wrong decision by the court. As the evidence is complete and the record is before us, therefore, there are two options with us; one, after setting aside the judgment and decree to send the matter to the learned trial court for decision afresh on the basis of evidence on each A and every issue separately in the light of Order XX Rule 5 of the C.P.C. As the learned Additional District Judge was conducting the trial of the suit and the other option is this Court decide the same issue-wise. In the light of pronouncements of the august Supreme Court of Pakistan reported as "Ali Muhammad v.
Muhammad Hayat and others" (1982 SCMR 816) when record is completely available with this Court only for re-writing of the judgment issue-wise the cases should not be remanded back to the learned trial court, .As the complete record is available with us, therefore, we have adopted the second option.
ISSUE NO 1.
9. With regard to Issue No, 1 the pleadings in Para 3 of the plaint are that 2-3/4 years ago defendant sold his property measuring 3-1/2 square in District Sargodha, District Jhang and District Hafizabad for a consideration of Rs.7,15,00,000 and received the amount before the witnesses and promised to transfer the same in the name of plaintiff. In the evidence in this regard when the plaintiff appeared as PW-6 stated that the defendant agreed to sell the property in the three Districts measuring 3-1/2 square on 7-5-2008 and the agreement was oral and the plaintiff paid Rs.4,00,00,000 (Rupees four crores only) on the day of agreement and remaining amount was to be paid after one week. First time he introduced the witnesses of agreement i,e, his brother, Nasir Abbas, Mazhar Hussain and Raza Hussain and stated that at the time of agreement he was informed that property is pledged with the bank 4nd a period of 1-1/2 month was agreed for performance. Plaintiff has stated that after that the defendant moved for partition of the property and he stated that he appeared in the cases. Mazhar Hussain was produced as PW-7. He stated that agreement was arrived at before him and the payment of Rs.4,00,00,000 was made on 7-5- 2008 at the time of agreement and rest of the amount i,e, Rs.3,15,00,000 was paid after 10 days of the agreement before him. Nasir Abbas appeared as PW-8. He stated the story with regard to the agreement narrated by the plaintiff. He has mentioned the specific date for the last payment of Rs.3,15,00,000 as 15-5-2007. For proving an oral transaction, of sale or agreement to sell plaintiff was required to plead the complete detail of oral agreement to sell/transaction of sale i,e, the date of agreement, time of agreement, place of agreement as well as the witnesses before whom the transaction was arrived at and complete terms of the agreement, as well as complete detail of property and payment under the agreement. As we have noted supra the specification of the property mentioned is 3-1/2 square in three different Districts and even without mentioning the village where that property situates, no date, time and place has been mentioned, even no witnesses have been mentioned. In the pleading it is mentioned that the whole consideration amount i,e, Rs.7,15,00,000 was received by the defendant whereas while evidence was produced the amount was bifurcated in two payments i,e, Rs.4,00,00,000 and Rs.3,15,00,000 whereas plaintiff as well as his witnesses are in contradiction with regard to the second installment of payment.
10. Specific pleading with full detail of the property, the time, date and place of the agreement, name of the witnesses and terms of the agreement are necessary because a person comes before a. Court for pressing his right on the basis of an oral agreement at least at the time of filing of the suit his full case be before the court as well as before the other party so that the other party may be able to defend the same as the agreement is oral one.
11. The pleading and evidence of the plaintiff is not up to the standards set by this Court as well as by the august Supreme Court of Pakistan with regard to pressing of a right on the basis of oral transaction. So far as the first part of the issue that whether the defendant received Rs.7,15,00,000 from the plaintiff is concerned, as we have noted supra, the pleading is not up to the mark and further that the oral evidence is in contradiction with the pleadings and further that the witnesses of the plaintiff are further in contradiction with the plaintiff as the plaintiff has stated that after one week of the original oral agreement rest of the money i,e, Rs.3,15,00,000 was paid whereas his witness PW-7 stated after 10 days of the original agreement the money was paid whereas PW-8 stated that after one week i,e, 15-5-2007 rest of the money was paid.
12. The amount is very huge one. There were two ways with the plaintiff to prove the payment; first to show that he was having this amount with him on the alleged date of payment of the same and the other was to prove that after receipt of the amount whether the same was deposited by the defendant in his account or where he has invested that big amount. The pleadings as well as evidence of the plaintiff is absolutely silent with regard to the above mentioned both the important factors. Plaintiff has admitted in his cross-examination that at the time of presentation of cheque in his account the amount available in his account was Rs.2000 only and he admitted that he has not produced his statement of account of the period when the alleged sale money was paid to the defendant.
13. In these circumstances, when it is admitted by the plaintiff in the cross-examination that on 10- 6-2008 Exh.D2, Exh.D4, Exh.D5, Exh.D6 and Exh.D7 applications for partition of the suit property were moved by the defendant and in the defence the plaintiff took the plea that due to private partition there is no need to further partition the property and he admitted that against the order of the revenue officer who prepared the mode of partition the appeal was filed before the DO(R). The copies of revisions filed by plaintiff and others are Exh.D8 to Exh.D11 and Exh.D14 on the file. Both the parties appointed Arbitrators on 15-8-2008 with regard to partition of the joint property between the parties and with regard to the crusher on the mountains, copy of agreement for appointment of arbitrator is Mark-"A", he admitted that all the partition proceedings were pending at that time and in none of the proceedings he has mentioned about the agreement to sell or the transaction of payment of the money for purchase of the property subject matter of the partition. He has further admitted filing of the suit for permanent injunction, copy of which has been produced as Exh.D15, filed on 30-10-2009, in this suit there is no mention of agreement to sell.
14. Another important fact which is missing in the pleadings and evidence of the plaintiff that what was the reason for the defendant to enter into agreement to sell almost his whole of the property with the plaintiff and further that why the agreement was oral one and whole of the agreed amount according to the plaintiff was paid and sale instrument was not got executed and what was the reason that even possession of not a single inch of the property under agreement to sell was taken. The story narrated by the plaintiff does not appeal to the reasons as well as mind. When plaintiff failed to prove a case pleaded by him the defence of the defendant is also worth consideration that he divorced the sister of plaintiff and there are strained relations between the parties due to partition of joint property between the parties. The case law i,e, "Zubair Ahmad and another v. Shahid Mirza and 2 others" (2004 MLD 1010), "Aftab lqbal Khan Khichi and another v.
Messrs United Distributors Pakistan LTD., Karachi" (1999 SCMR 1326), "Tasam All Bukhari v. Ghulam Mustafa and 4 others" (2014 CLC 244), "Syed Allaz Hussain . Syed Abdul Azeem" (2008 CLC 41), "Col.
(Retd) Ashfaq Ahmed and others v. Sh. Muhammad Wasim" (1999 SCMR 2832), "lean Fazal v. Zahid lqbal" (2004 CLC 384), "S. K. Abdul Aziz v. Mahmoodul Hassan and others" (2000 CLC 1967), "Shell Pakistan Ltd., through Attorney v. A ero AslaInten through Chief Executive and another" (2008 CLD 996), "Muhammad Sabir v. Khalil-ur-Rehman" (2002 CLD 1545), "Zar Wall (1992 SCMR 1778) and "Mian Aziz A. Sheikh v. The Commissioner of Income Tax Investigation, Lahore" (PLD 1989 Supreme Court 613) referred and relied by the learned counsel for the respondents does not match with the facts of this case, therefore, not applicable as well as helpful for the respondent.
15. In this view of the matter, it is clear that plaintiff-respondent miserably failed to plead the agreement to sell or transaction of sale and payment of consideration amount of Rs.7,15,00,000 to the defendant for purchase of 31/2 square land owned by the defendant, therefore, this issue is decided against the plaintiff.
ISSUE NO.2.
16. In the light of findings recorded by us on Issue No, 1 so far as the portion of issue that whether defendant refused the transfer of the suit land is concerned, when no agreement has been proved and no consideration amount, payment of consideration amount has been proved and issue No, 1 has been decided against the plaintiff no question of refusal of transfer of land arises.
17. _Now remains the issuance of cheque for return of the amount and its dishonor. Admittedly, the cheque has been presented and has been dishonored by the bank but when the case of the plaintiff that the cheque was issued for re-payment of the amount received by the plaintiff for sale consideration of his owned land measuring 3-1/2 square is concerned, as we have observed on Issue No, 1 that the plaintiff failed to prove any agreement to sell oral sale transaction or payment of the suit amount to the defendant for price of the land, therefore, no question of handing over the cheque for re-payment of the amount. We have noticed that learned trial court has much relied upon the presumptions attached under section 118 of the Negotiable Instruments Act (XXVI) of 1881 with the negotiable instruments and on that basis has recorded general findings while decreeing the suit. We are conscious of the fact that no doubt presumptions are attached with the negotiable instrument but the same are rebuttable. In this case when the plaintiff himself opted to plead that the cheque was for return of the money, he paid to the defendant for purchase of the property but he miserably failed to prove any agreement or payment under the agreement to the defendant, therefore, it is clear that the cheque in question is not with regard to the repayment of the amount received by the defendant.
' To hold that presumptions attached with a negotiable instrument are rebuttable we have been guided by the judgments reported as "Asif Ali and 6 others v. Saeed Muhammad" (2009 CLD 1301), "Kundan Lal Rallaram v. Custodian Evacuee Property, Bombay" (AIR 1961 SC 1316) and "Muhammad Sabir v. Muhammad Akram" (2006 CLD 863).
' Now comes the question that whether issuance of cheque has been admitted by the defendant as observed by the learned trial court, we are afraid that by the admission of the defendant when he appeared in the witness-box in cross-examination that cheque is signed by him, the learned trial court has taken the wrong inference that issuance of cheque has been admitted, signatures upon the cheque does not mean the issuance of cheque, we can safely rely and agree with the case law reported on this point as "Muhammad Amin v. Ghulam Muhammad" (PLD 1993 Lahore 569), "Altaf Sardar v. Shamas Din" (2005 YLR 2614) and "Sardar Khan v. Abdul Ghani" (1989 MLD 3656), as issuance of cheque was pleaded by the plaintiff whose version has not been proved and admitted by us, therefore, version of the defendant that plaintiff managed to stole the cheque through the driver of the defendant, which is supported by the voluminous admitted evidence in the shape of documents of litigation between the parties as well as the admission by the plaintiff that before filing the suit in the litigation in the shape of partition or filing of his suit for injunction the agreement of the sale of the property in his favour or the issuance of cheque by the defendant for repayment in his favour was never pressed or pleaded or brought in the notice of the court even was not a matter in issue when the Arbitrators were appointed, the agreement of Arbitration has been produced as Mark-A: In the circumstances when there is an evidence that the defendant divorced the sister of plaintiff on attaining the majority of the Nikah between them, which was performed at the time of minority, when there was a continuous litigation between the parties, which is proved through the documentary evidence produced by the parties and admission by the plaintiff himself, the presumptions attached under section 118 of the Act ibid have validly been rebutted by the defendant view appellant. In this view of the matter we are of the view that plaintiff failed to prove the issuance of cheque by the defendant in his favour for Rs.7,15,00,000.
ISSUE NO.3.
18. When Issues Nos. 1 and 2 have not been proved, no question of grant of decree in favour of the plaintiff-respondent arises.
ISSUE NO.4.
19. Though the suit has been filed, the suit is false and frivolous but there is criminal litigation also between the parties on the basis of cheque, the defendant-appellant will be at liberty to press for the damages etc. In the litigation.
RELIEF.
20. In this view of the matter, on the basis of findings recorded by us Supra, this appeal is accepted and the judgment and decree passed by the learned trial court is set aside with cost throughout.