This regular first appeal in terms of Secti on 96 of the Code of Civil Procedure (V of 1908) (hereinafter referred as "CPC") calls in question the judgment and decree dated 13th December , 2014 handed down by the learned Additional District Judge, Attock, whereby he proceeded to decree the suit instituted by the respondent in, terms of Order XXXVII of the Code ibid.
2. Precisely the facts necessary for adjudication of instant appeal are that the respondent instituted a suit for recovery of Rs. 44,80,000/- in a summary character , while invoking provisions of Order XXXVII of "CPC" on the basis of cheque Bearing No. 8892406 pertaining to Account No. 0120023605 Allied Bank Hazro Main Bazar Branch. It is averred in the plaint that the respondent had purchased a plot measuring 16 Marias through Khan Afsar Siddiqui vide registered Sale-Deed No. 6038/1 dated 13th October , 2009 against sale consideration of Rs.
44,80,000/- from the appellant, who brought Muhammad Ramzan Shad (husband of one Mst. Balqees Akhtar) for the transfer of plot in favour of Muhamma d Bilal as the same was in the name of said Mst. Balqees Akhtar and the sale amount in the registered sale-deed was mentioned as Rs. 11,20,000/-. As per averments contained in the plaint, the respondent appeared on behal f of Muhammad Bilal at the time of attestation of registered sale-deed and he paid Rs. 44,80,000/- and in this regard on 12th October , 2009 the appellant also made a declaration in favour of Khan Afsar Siddiqui (broker) through stam p Paper No. 966 dated 12th October , 2009 stating that he (appellant) will hand over the possession of the plot to the respondent. He also handed over a Cheque No. 1411077 dated 12th November , 2009 amounting to Rs. 44,80 ,000/- to said Khan Afsar Siddiqui with the condition that if the appellant fails to hand over the possession of plot till 12th November , 2009, then the respond ent will encash the cheque and get amount from "char!' Afsar Siddiqui. As per contents of the plaint, when it came into knowledge of the respondent that the appellant not only failed to hand over the possession of the plot to him but he committed fraud because a fake plot has been sold out in connivance with said Muhammad Ramzan Shad, being attorney of his wife Mst. Balqees Akhtar despite the fact that the said plot had already been sold out in favour of Public Cooperative Housing Society Limited Lala Rukh, Want Cantonment vide Sale-Deed No. 792/1 dated 28th February , 1983 including other lands and cheque issued in favour of Khan Afsar Siddiqui was also dishonoured. It is the claim of the respondent that then he approached to the appellant whereupon he issued cheque in question, which on presentation to the bank was dishonou red due to insuf ficient amount. The appellant, while resisting the suit submitted an application for leave to appear and to defend, which was allowed vide order dated 09th June, 2011.
The appellant in his written statement asserted that he has business relationship with the respondent and the cheque in question was given as surety . From the divergent pleadings of the parties, learned trial Court framed following necessary issues:- ISSUES
1. Whether plaintif f is entitled to get a decree for recovery of amount of Rs. 44,80,000/- on the basis of Cheque No. 8892406 dated 30.5.2005 of Account No. 0120023605 which was issued by the defendant in favour of Plaintif f No. 1? OPP
2. Whether plaintif f has no cause of action and locus standi to bring this suit? OPD
3. Whether the suit of the plaintif f is not maintainable in its present form? OPD
4. Whether alleged cheque is without consideration and issued by the defendant as a surety in favour of Plaintif f No. 1 and instant suit has been filed by the plaintif f on the basis of mala fide by keeping secret the original facts?
OPD
5. Relief.
After framing of issues both the parties produced their respective evidence and on completion of the same, suit was decreed by way of impugned judgment dated 13th December , 2014, hence this appeal.
3. Learned counsel for the appellant submitted that suit in a summary character was not maintainable under the circumstances. Learned counsel for the appellant contended that cheque in question was issued to the respondent as surety and it was without consideration, so onus shifts upon him to prove his stance. Learned counsel maintained that suit was decreed in an illegal and unlawful manner and evidence has grossly been misread by the Court below .
4. Conversely , learned counsel for the respondent submitted that the appellant though pleaded that cheque was issued as surety but he did not produce any evidence to this effect. Learned counsel argued that to the contrary , respondent produced all the material evidence which supported his case and suit was rightly decreed. Learned counsel contended that appellant has failed to point out any illegality or material irregularity in the impugned judgment.
5. Heard. Record perused.
6. The suit was instituted on the basis of cheque Bearing No. 8892406 dated 30th May, 2010 (Exhibit-P1) purportedly issued by the appellant, which was dishonoured on its presentatio n to the concerned bank. The respondent in order to prove his claim himself appeared as PW1 and also tendered necessary documents as Exhibit-P1 to Exhibit-P10, respectively . The respondent duly established the issuan ce of cheque by the appellant in his favour and fully supported his version. He was though cross-examined at length but nothing could be extracted therefrom.
7. Perusal of record reveals that while resisting the suit the appellant moved an application seeking leave to appear and to defend in terms of Order XXXVII Rule 3 of "CPC". The application was acce pted by way of order dated 09th June, 2011 and in pursuance thereof, the appellant submitted his written statement. From the contents of written statement it is evidently clear that issuance of cheque is not denied by the appellant. His stance is that cheque was handed over to the respondent as a surety/guarantee. Even otherwise Para No. 6 of the written statement reveals that only evasive denial was made by the appellant in respect of his liability . Law is well settled that when a specific fact is asserted in the plaint then defend ant is bound to controvert the same with specific implications and any evasive denial would be deemed to be an admission on his part qua that fact as ordained in Order VIII Rule 5 of "CPC". Reference in this respect if needed can be made to "Ghulam Rasool throush L.Rs. and others versus Muhammad Hussain and others " (PLD 2011 Supreme Court 119) and "Bashir Ahmed and 3 others versus Muhammad Aslam and 6 others " (2003 SCMR1864) .
8. It is also noteworthy to mention here that the respondent produced FIR No. 603 offence under Section 489-F of the Pakistan Penal Code, 1860 registered at Police Station Hazro against the appellant regarding dishonouring of cheque in question as Exhibit-P7. The appellant applied for his pre-arrest bail before the learned Additional Sessions Judge, Attack in the said case wherein he recorded his statement on 10th January , 2011 to the following effect: {{URDU TEXT}} It is manifestly clear from the above that the appellant himself admitted the liability . Furthermore on the basis of registration of said FIR conviction of the appellant was also made through judgment dated 20th July, 2011 passed by the learned Magistrate Section 30, Attock, which also attained finality and same was produced by the respondent in evidence as Exhibit-P9.
9. Learned counsel for the appellant has mainly emphasized that the registered sale-deed executed in favour of the respondent in pursuance to the transaction is still intact, suffice to observe that this by itself is sufficient to substantiate that the cheque was with consideration and it was not issued as security/guarantee. Even otherwise it is apparent from the record that in pursuance to the sale-deed Mutation No. 6062 dated 16th December , 2009 (Exhibit-P4) was effected, which was reviewed by the orders of the District Officer (Revenue)/Collector and through Mutation No. 6162 dated 29th march, 2010 (Exhibit-P6) land stood transferred in the name of Wali Public Cooperative Society Limited.
10. There is no denial that cheque is one of the negotiable instrument under the Negotiable Instruments Act, 1881.
Order XXXVII Rule 2 of "CPC" envisages that a suit can be instituted in a summa ry character on the basis of bills of exchange, hundies or promissory notes. The suit in a summary character was thus fully competent and maintainable.
11. In terms of Section 118 of the Negotiable Instruments Act, 1881 a cheque, being a negotiable instrument carries a presumption of truth. The respondent in order to prove his claim has produced all the necessary evidence and as such successfully proved his case. Even otherwise when it is appellant's own case that he has handed over the cheque to the respondent which bears his signatures then he was obliged to prove that it was for some other consideration and was a guarantee/surety . The appellant has since failed to prove that cheque was issued as surety so no cavil left that cheque was issued with consideration. The respondent was thus no more required to lead any evidence to prove this fact. Refe rence in this respect, if needed, can be made, to "Azhar Hussain versus Muhammad Iqbal" (2003 CLD 521 ) wherein it is held that: "6. Section 118(a) of the Negotiable Instruments Act, 1881 give rise to a statutory presumption to every negotiable instrument that the said document was executed with consideration. For conven ience, the relevant provision is reproduced as follows: Section 188. "Presumptions as to negotiable instruments .--Until the contrary is proved, the following presumptions shall be made:--
(a) Of consideration: that every negotiable instrument was made or drawn for consideration, and that ever such instrument when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed negotiated or transferred for consideration;''
In the instant case, the respondent while appearing as D.W.1 had admitted to have signed Exh.P.1 and Exh.P.2.
Once it is admitted that the document/negotiable instrument was executed between the parties, the statutory presumption that the document was with consideration comes into existence and the plaintiff is no more required to lead any evidence to prove consideration. However, this presumption is rebuttable and the defendant has every right to raise a plea of fraud or that the instrument was not intended to be a negotiable instrument or for that matter he may raise any other plea. But such plea has to be raised in his written statement and then proved through evidence..15
12. For the foregoing reasons, I feel no hesitation to observe that the learned Addit ional District Judge was justified to decree the suit in presence of overwhe lming and unimpeachable evidence in support of the claim of respondent.
The appellant has failed to point out any illegality , material irregularity , misreadi ng or non-reading of evidence, justifying interference by this Court in appellate jurisdiction, consequently the instant appeal fails and is dismissed with no order as to costs.