AMIN-UD-DIN KHAN, J.---Through this appeal filed under Article 185(2) of the Constitution of Islamic Republic of Pakistan, 1973, the judgment and decree dated 05.03.2020 passed by the learned Single Judge of the learned Lahore High Court Lahore in R.F.A. No. 209 of 2010 has been assailed whereby R.F.A. was allowed.
2. We have heard the learned counsel for the parties and gone through the record with their able assistance.
3. Respondent-plaintiff filed a suit for recovery of Rs.700,000/- on the basis of a cheque under Order XXXVII of the C.P.C. before the learned District Judge, Jhang. For summary trial of the suit, summons were issued, the appellant-defendant was served. He filed an application for grant of leave. Leave was granted to him. He filed written statement and contested the suit. The relationship that defendant-appellant remained an employee with the plaintiff was admitted. The defence pleaded by the defendant-appellant was that the cheque on the basis of which suit was filed was dropped/lost somewhere along with his wallet. The learned trial court framed the issues and invited the parties to produce their evidence. Both the parties produced their oral as well as documentary evidence. The learned trial court dismissed the suit vide judgment and decree dated 24.07.2009. R.F.A. was preferred before the learned Lahore High Court, which was accepted through the impugned judgment and decree. Hence, this appeal.
4. Learned counsel for the appellant argues that the issues were not properly framed. The plaintiff-respondent was obliged under the taw to prove the delivery of mobile sims as well as mobile cards as pleaded in the plaint that same were handed over to the appellant and for the payment of said cards the cheque in question was issued in favour of the plaintiff-respondent. Learned counsel for the appellant has relied upon "Salar Abdur Rauf v. Mst. Barkat Bibi" (1973 SCMR 332) as well as "Ghulam Murtaza v. Muhammad Rafi" (2020 MLD 772).
5. On the other hand, learned counsel for the respondent argues that the judgment and decree passed by the learned first appellate court is in accordance with law as presumptions mentioned in section 118 of the Negotiable Instruments Act (XXVI of 1881) were attached with the cheque. No-doubt that same are rebuttable under the law but the appellant failed to rebut the same, therefore, the learned High Court was right in granting a decree in favour of the plaintiff-respondent. He has relied upon the judgments of the Indian Supreme Court reported as "Rohitbhai Jivanlal Patel v. State of Gujarat and another" (AIR 2019 Supreme Court 1876) and "Uttam Ram v. Devinder Singh Hudan and another" (2019 (10) SCC 287).
6. Presumptions mentioned in section 118 of the Negotiable Instruments Act (XXVI of 1881) are attached with a negotiable instrument unless proved contrary. In the instant case it is an admitted position that the cheque was of the account and cheque book of the appellant. The case pleaded by him was that the cheque was dropped/lost, he reported the matter to the police through an application which is Exh.P.3. In the said application which was addressed to the Branch Manager of the Bank for the purposes of stopping the payment, the loss of whole cheque book of Account No. 2384 was reported and this document is admitted by the appellant- defendant. The cheque was dishonoured on its presentation on the ground of "insufficient funds" and "payment stopped by the drawer". Same was the statement of PW-2 Manager, MCB when appeared before the Court.
Neither it is the statement of PW-2 nor mentioned on memorandum of refusal of cheque B that the cheque does not contain signatures of the appellant-defendant nor suggested in the cross-examination to this witness that the cheque does not contain signatures of the defendant-appellant. So far as reliance of the learned counsel for the appellant SALAR's case (supra) is concerned, in that case the plaintiff filed a regular civil suit on the basis of a promissory note as a pauper. Subsequently he paid the court fee and his witness Ghulam Fareed contradicted the statement of his two earlier witnesses namely Hazrat Shah and Abdul Qayyum and it came on record that plaintiff was having no bank account and was not a man of means. Though the learned Single Judge of the Lahore High Court in the judgment reported as "Ghulam Murtaza v. Muhammad Rafi" (2020 MLD 772) has referred Salar's case supra but we do not agree with the interpretation of section 118 by the learned Judge, which is against the principles laid town in "Salar Abdur Rafuf v. Mst. Barkat Bibi" (1973 SCMR 332). The reliance of learned counsel for the respondent on "Rohitbai Jivanlal Patel v. State of Gujarat and another" (AIR 2019 Supreme Court 1876) and "Uttam Ram v. Devinder Singh Hudan and another" (2019 (10) SCC 287) supports the version of the learned counsel for the plaintiff-respondent that the presumption was to be rebutted by the appellant and further that when the ground for dishonour of a cheque was "insufficiency of funds" and "stopped payment", there can be no presumption that cheque was not having signatures of the appellant. The defendant was having a choice to produce the Handwriting Expert when he disputed his signatures upon the cheque in dispute after the statement of PW-2 the Bank Manager. He opted not to produce him. This fact goes against him in the light of "Abdul Rasheed v. Fazal Ali Shah" (2016 SCMR 2163). Further the objection of the learned counsel for the appellant that plaintiff-respondent was obliged to prove the delivery of mobile cards and mobile sims has also no force when relationship of employee of the plaintiff-respondent was not denied and it was not denied that the cheque is of the account and cheque book of the appellant-defendant. The said pleadings were not necessary to be proved through evidence.So far as objection of learned counsel for the appellant that the proper issues were not framed, we are afraid that at this stage when the pleadings of the parties were in their knowledge and both the parties have led evidence of their own choice in the shape of oral as well as documentary, the objection of non-framing of proper issues is not relevant at this stage.
7. In the above circumstances, we see no force in this appeal, same stands dismissed with costs throughout.