MUZAMIL AKHT AR SHABIR, J. This appeal is directed against the judgment and decree dated 04.09.2014 passed by the Addl. District Judge, Mailsi, whereby the suit for recovery of Rs.25,50,000/- filed by the respondent was decreed against the appellant.
2. Brief facts of the case are that the respondent filed a suit for recovery of Rs.25,50,000/- against the appellant on the basis of cheque bearing No. 32187815 drawn on Muslim Commercial Bank Limited, Mailsi Branch. The claim of the plaintif f/respondent is that he had been dealing in the business of fertilizers and pesticides under the name of Qazi Traders. The appellant had been dealing with the respondent for quite some time and both the parties had previous business transactions amongst themselves based on cash and credit. The appellant expressed need for Rs.3 Million. On 03.07.2009, the respondent advanced an amount of Rs.25,50,000/- to the appellant in the presence of witnesses and the appellant promised to return the same and issued a cheque in favour of the respondent. The respondent presented the said cheque on 02.12.2009, which was dishonoured by the concerned Bank due to insufficient funds. The respondent got a criminal case F.I.R No. 368/2010, for offence under Section 489-F P.P.C registered at P.S. City Mailsi against the appellant. The respondent also filed the afore-referred recovery suit against the appellant. In response, the appellant appeared in the court and filed an application for leave to defend, which was allowed on 26.02.2011 subject to furnishing of surety bond. Thereafter, the appellant filed written statement and denied having received the amount and claimed that he had issued three blank cheques to the respondent as guarantee in connection with fertilizers business and the respondent had fraudulently filled up one of the cheques and started proceedings against the appellant. After recording of evidence the suit filed by the respondent was decreed on 04.09.2014 by the Addl. District Judge, Mailsi. The appellant has challenged the said judgment and decree in appeal before this Court.
3. The counsel for the appellant has argued that suit could not have been decreed for the reason that the original cheque and memo slip were not produced in evidence by the respondent and best evidence has been withheld.
The earlier application filed by the respondent for production of secondary evidence relating to cheque and memo. slip was dismissed by the court on 10.10.201 1, therefore, the court should not have allowed the respondent to produce secondary evidence on subsequent application and the order dated 11.10.2012 allowing the respondent to lead evidence was based on erroneous exercise of jurisdiction.
4. These assertions raised by the appellant have been duly considered and answered by the Addl. District Judge in his order dated 11.10.2012, whereby the respondent was allowed permission to lead secondary evidence. The relevant portion of the order is reproduced below:- "Record goes to show that plaintif f earlier filed this petition which was dismissed being not competent by my learned predecessor vide order dated 10.10.201 1 who observed that it is necessary for the plaintif f to give notice to the SHO concerned u/s. 76(a) and Article 77 of Qanoon-e-Shahadat. Plaintif f approached to the learned trial court in which criminal case was pending for summoning Muhammad Akhtar Dogar/SHO for production of original cheque. Report was received in the court that Muhammad Akhtar Dogar SI/SHO has died. Certified copy of report has been placed on the file to show that Muhammad Akhtar Dogar Inspector has died. My learned predecessor while deciding former application of plaintif f has observed that original cheque was not attached with the police file/challan case. Since the original documents are not available in the challan case, the SHO Muhammad Akhtar Dogar to whom these documents were handed over has died. In the referred circumstances, plaintif f is left with no option but to produce the secondary evidence of the documents to prove his version. Application is accepted and plaintif f is allowed to produce secondary evidence in accordance with law ."
5. From the aforementioned order it is clear that earlier application was dismissed on 10.10.2011 by the court by observing that the respondent should first give notice to the concerned SHO under Articles 76(a) and 77 of the Qanoon-e-Shahadat Order, 1984. The order dated 10.10.2011 had not finally decided the matter rather the respondent was directed to adopt the procedure provided under Article 77. The relevant portions of Articles 76 and 77 of the Qanun-e Shahadat Order , 1984 are reproduced below: "76. Cases in which secondary evidence relating to document may be given. Secondary evidence may be given of the existence, condition or contents of a documents in the following cases: (a). when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court; or of any person legally bound to produce it; and when after notice mentioned in Article 77, such person does not produce it.
(b) ........................................
(c). when the original has been destroyed or lost, or when the party offering evidence of the contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time.
(d) ........................................
(e) ........................................
In cases (a), (c), (d) and (e), any secondary evidence of the contents of the document is admissible.
77. Rules as to notice to produce. Secondary evidence of the contents of the documents referred to in Article 76, paragraph (a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his advocate such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case: Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the court thinks fit to dispense with it:
(1) ........................................
(2) ........................................
(3) ........................................
(4) ........................................
(5) ........................................
(6). When the person in possession of the document is out of reach of, or not subject to, the process of the Court ."
(emphasis supplied)
6. From the perusal of the afore-referred Articles it is observed that secondary evidence of the existence, condition or contents of a document may be given , inter alia, when it is in possession of any person out of reach of or not subject to process of the court or when the document is destroyed or lost or when a party seeking to produce such document cannot for any other reason not arising from his own default or neglect, produce it.
7. When in compliance of the orders of the court, the respondent approached the trial court, it transpired that the concerned SHO had died and he had not placed the original cheque along with report/challan submitted in the court and the same was not traceable, therefore, the same could not be produced in original in evidence. This was sufficient reason for allowing the respondent to produce secondary evidence of the documents that had not been available due to circumstances beyond the control of the respondent. Besides in changed circumstances when the course of action prescribed by earlier order had been followed by the respondent and situation of impossibility to produce original documents had emerged, the court was well in its jurisdiction to allow secondary evidence relating to the cheques. In our opinion reasons for permission by the trial court to lead secondary evidence have been sufficiently explained and justified, therefore, the objections to that extent raised by the appellant are not based on legal justification and not sustainable in law hence overruled. Besides, once the said jurisdiction to allow secondary evidence is exercised by the trial court, the same cannot be interfered by this Cour t unless a case of miscarriage of justice is made out. Reliance may be placed on case titled Mst. Taj Bibi vs. Syed Ahmad Shah (1989 SCMR 1001 ), wherein it has been held as under: "The question of loss of the original having been decided by the trial Court and secondary evidence having been permitted to be given, an established principle of law would be attracted, namely , that the question whether sufficient grounds have or have not been made out for the admission of secondary evidence is a question properly to be decided by the trial Court and is treated to be depending very much on its discretion. It has been held that the conclusion of the trial Court on this point should not be overruled by the Court of appeal, except in a clear case of miscarriage of justice. We are satisfied that the conclusion of the trial Court was based on sufficient and tenable grounds and it was not open to the High Court in second appeal to upset the same so as to exclude secondary evidence received and acted upon by the T rial court. "(emphasis supplied)
8. The counsel for the appellant has contended that secondary evidence could not be the substitute of the primary evidence, which is the best evidence and having failed to produce the best evidence, adverse presumption is to be drawn against the respondent / plaintif f under Article 129 illustration (e) of the Qanun-e-Shahadat Order , 1984 and his suit is liable to be dismissed. To resolve this ground reference may be made to Article 75 of the Qanun-e- Shahadat Order , 1984, which provides as under: "75. Proof of documents by primary evidence. Documents must be proved by primary evidence except in cases hereinafter mentioned."
Though Article 75 provides that documents must be proved through primary evidence, it also creates exception for cases mentioned in Article 76 read with procedure provided in Article 77 of the Qanun-e -Shahadat Order , 1984. Secondary evidence is allowed as an exception to proof of documents through primary evidence i.e. the best evidence available. Besides Article 76 is a Principle of law of evidence and Article 129 illustration (e) merely refers to a presumption, therefore, the principles laid down in Article 76 would prevail over the best evidence rule prescribed in the afore-referred illustration.
9. The next objection raised by the appellant was that wrong account number has been mentioned by the respondent in his plaint as 3380-4 whereas the actual account number is 3480-4. This objection is also not made out form the record as from the perusal of the written statement filed by the appellant it is seen that he has not denied the issuance of cheques rather he has admitted that three cheques were issued in blank to the respondent as guarantee. He has not denied that cheque did not belong to him or were not signed by him, rather the claim of the appellant is that blank cheque was fraudulently filled in by the respondent, therefore, by merely mentioning wrong account No. i.e., 3380-4 instead of 3480-4 in the plaint, which number was also referred to by the appellant in written statement, would not benefit the case of the present appellant.
10. The plaintif f / respondent had produced photo stat copies of cheque which is exhibited as Exh.P-1 and memo slip as Exh.P-2. Besides the respondent appeared in evidence as PW-1 in support of his claim and produced witnesses of the transaction Muhammad Iqbal son of Peer Bakhsh (PW-2) and Zulfiqar son of Haji Muhammad Yousaf (PW-3) before whom the amount was paid by the respondent to the appellant, who issued the cheque. Both these witnesses supported the claim of the appellant by stating in their evidence that the transaction had taken place in their presence. They were cross-examined by the appellant but they stood consistent with their statement in examination in-chief. Irshad Ahmad, Manager , MCB Bank appeared as PW-4 and got recorded his statement that the cheque Exh.-P1 drawn on A/c No. 3480-4, bears the signatures of the appellant, was presented by Qazi Muhammad Rashid, respondent for its encashment which was dishonoured because of insuf ficient balance. He has also endorsed that cheque exhibited as Exh.P-1 and memo of slip as Exh.P-2 and the memo of slip bears his signatures as Exh.P2/1. He was cross-examined but he remained consistent with his evidence.
11. The appellant appeared as his own defence witness as DW-1. In cross-examination he had admitted that cheque bears his signatures and he did not file any suit for cancellation of the same. He admitted that he filed suit for rendition of account which has been dismissed and he did not file any appeal against the same. He admitted that cheque had been given by the appellant although he claimed the same to be as guarantee in blank. Previous business transactions between the parties are admitted. Every negotiable instrument is presumed to have been issued against consideration. Although, the presumption under Section 118 of the Negotiable Instruments Act, 1881 is rebuttable, it has to be rebutted by leading cogent evidence. The appellant has failed to produce any such evidence rather the respondent had not only produced the cheque through secon dary evidence but produced the witnesses as PW-2 and PW-3 in whose presence the payment was made and cheque was issued by the appellant.
Furthermore, statement has been supported by the Bank Manager concerned. Therefore, the appellant is not entitled to any relief. Reliance may be placed on the case of Muhammad Azizur Rehman vs. Liapat Ali (2007 CLD 1605 ) wherein in the Supreme Court held as under: "The appellant denied the execution of promissory note or receipt in his written statement but in the cross- examination admitted that the pro note and the receipt were executed by him as a guarantee for business with the respondent. According to section 118 of the Act, until the contrary is proved, the presumption shall be made that every negotiable instrument was made or drawn for consideration. The appellant has not been able to establish on the record through independent and cogent evidence that consideration of the promissory note had not been receive by him."
12. No discrepancy has been found out in the judgment of the court below whereby the same could be declared to have been passed without lawful authority or based on erroneous exercise of jurisdiction. The judgment and decree passed by the court below are based on proper appreciation of evidence available on the record, resultantly, we uphold the same. This appeal being meritless is dismissed.