ATIR MAHMOOD, J.---- Through this Regular First Appeal, the appellant-plaintif f (hereinafter called as "appellant ") has impugned the judgment and decree dated 24.07.2009 passed by learned District Judge, Jhang, whereby , the suit filed against the respondent-defendant (hereinafter called as "respondent") by the appellant under Order XXXVII, C.P.C. for recovery of Rs.700 ,000/- on the basis of Cheque No.26797869 dated 21.05.2007 was dismissed.
2. Brief facts of the case are that the appellant filed a suit under Order XXXVII, C.P.C. for recovery of an amount of Rs.700,000/- from the respondent alleging therein that he is running a shop of Mobilink mobile phone where he is selling, sim cards and scratch cards, etc. He had employed some servants against salary and commission who sell the scratch cards by going to some other areas also. The respondent, on 1.7.05.2007 got scratch cards amounting to Rs.700,000/- for selling and inspite of making the payment, he has given a cheque No.26797869 dated 21.05.2007 to the appellant to be drawn from Muslim Commercial Bank, Ayyub Chowk Branch Jhang. Thereafter , the respondent did not come to the shop, the appellant contacted the respondent who told that he is busy in thrashing of crop in his farm. Afterwards appellant approached to the Muslim Commercial Bank and presented the cheque before the concerned bank for encashment which was dishonored with a memo. of insuf ficient balance. A criminal case under Section 489-F , P.P.C. has also been registered against the respondent in account. The appellant approached the respondent for payment but he refused to do so. After getting leave to appear , the appellant filed written statement. Out of divergent pleadings of the parties, following issues have been framed by the learned trial Court: ISSUES
1. Whether the defendant obtained Rs.7,00,000/- on 17.05.2007 and issued cheque No.26797869 in favour of the plaintiff, to be drawn at MCB Ayyub Chowk, Jhang for the payment of the price of the said cards? OPP
2. Whether the suit is false, frivolous and vexatious, hence, the defendant is entitl ed to get special costs from the plaintiff under section 35-A CPC. If so, how much? OPD
3. Relief.
Thereafter , parties were directed to produce evidence which was adduced and recorded accordingly . After recording oral as well as documentary evidence of the parties, learned trial court proceeded to dismiss the suit vide judgment and decree dated 24.07.2009. Hence this Regular First Appeal.
3. Learned counsel for the appellants inter alia contends that impugned judgment and decree is the result of misreading and non-reading of evidence; that respondent admitted in his cross-examination that he was an employee of the appellant and deals in the business of scratch cards and sims; that respondent admitted that he always used to give the cheques as suret y and after the sale of cards and sims pay the amount and took back the cheques; that the learned trial Court did not verify the signatures upon the cheque from the handwriting exparte; that there was no need to issue notice to the respondent as observed by the learned trial Court because a criminal case was also pending adjudication between the parties which proves that the respondent was well aware with the suit; that learned trial Court decided the case on the self-assumed facts not proved on record; that the learned trial court has failed to appreciate the evidence in its true spirit and picked up the inconsequential portion of evidence without reference to the context; that the impugned judgment and decree suffers from illegalities and material irregularities, therefore, it cannot sustain in the eye of law. Learned counsel prays that this RFA be allowed and the impugned judgment and decree be set aside.
4. On the other hand, learned counsel for the respondent has supported the impugned judgment by asserting that the learned trial court had rightly dismissed the suit by appreciating the evidence produced by the parties, therefore, this RF A is liable to be dismissed with cost.
5. Arguments heard. Record perused.
6. After perusal of the record and hearing the arguments, the point for consideration before this court is whether the cheque in dispute was validly given to the appellant for its encashment and the appellant was entitled for the decree as prayed for .
7. As per contents of the plaint, the appellant took the stance that the responde nt issued the disputed cheque against the getting of cards and sims which was presented for encashment before the concerned branch but the same was dishonored. To prove his stance the appellant appeared in the witness box as PW-3 and narrated the same stance as contemplated in the plaint. He also produced other four in support of his version. In his examination in chief, PW -3 Shahzad Rafiq deposed that: {{URDU TEXT}} (Emphasis provided)
In cross-examination it has specifically been asserted in reply to the suggestion that: {{URDU TEXT}} The above deposition clears that it is admitted fact that it was practice of handing over cards and sims by the appellant to the respondent and giving cheques as surety against them by the respondent to the appellant.
Moreover , there is no denial on behalf of the respondent anywhere in this regard.
8. In para No.2 of the written statement respondent submitted that:- {{URDU TEXT}} The respondent asserted in the above quoted para that there were two cheques which were in his wallet and said wallet was dropped anywhere, whereas in his post arrest bail application he established that eight cheques have been stolen by some else. In the application Ex.P-3 for stoppage of payment in the Muslim Commercial Bank, Ayub Chowk Branch, Jhang he alleged that his 32 cheques have been lost. At afore-mentioned three forums, the stances of the respondents are different qua the number of cheques. Moreover , at one place he stated that his cheques were dropped, at the second place he deposed that some one had stolen his cheques and at third place he asserted that cheques have been lost. So, there is much contradictions in the statements of the respondent at different occasions. The stance of the respondent in his cross examination is that: {{URDU TEXT}} In the afore-mentioned portion of cross-examination, the respondent made assertion that when the cbeque book lost, he on the same day visited the bank and stopped the payment, whereas, application of the respondent which has been submitted to the Manager MCB Branch Ayub Chowk Jhang reflects that same has been filed on 10.10.2006 approximately one month later from the date when the cheque book was lost. This refutes the stance of the respondent. There are material contradictions between the stances taken by the respondent in evidence as well as in the written statement. The evidence being so contradictory and sketchy , cannot be used for declaring the stance of the respondent as correct.
9. Though the respondent had denied his signatures on the cheque, however , he has not made effort for its comparison which was necessary in order to ascertain the actual position. It was his duty to file an application for comparison of signature, if he deemed that his stance is correct. Even learned trial Court had not made any effort in this regard as the Trial Court had exclusive jurisdiction to send the matter to the handwriting expert for comparison of signatures. It would be advantageous to re-produce Article 84 of Qanun-e-Shahadat Order herein below:- "84. Comparison of signature, writing or seal with others admitted or proved. (1) In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made any signature, writing a seal admitted or proved to the satisfaction of the Court to have been written . or made by that person may be compared with the one which is to be proved, although the signature, writing or seal has not been produced or proved for any other purpose.
(2) The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.
(3) This Article applies also, with any necessary modifications, to finger impressions."
It depicts from the above, that court could get the comparison of signatures, however , learned trial Court has not bothered to do so. It is relevant to mention that the disputed cheque was presented to the concerned bank and was dishonoured due to insuf ficient funds but no objection was raised by the concerned bank authority that signatures of the executant were different. Ex.P2 is reflective of the said fact. Reason No.19 is available on Ex.P-2 in this regard, however , concerned bank had not objected as such. Even otherwise, nowhere in the evidence he asserted that he has not received Rs.700,000/- nor suggestion was put to the appellant during cross-examination in this regard.
10. The stance of the respondent as taken in Rapt No.12 dated 13.09.2006 was that his two cheques were lost at Railway Phatak Gojra Road, however , it is astonishing that how one cheque reached in the hands of appellant and he used the same. It is not possible and does not stand to reason that how the cheque, without the consent of its maker , was in possession of the plaintif f. No cogent evidence has been produced by the defendant that he has not issued the cheque nor signed it. It is not on the record that the cheque is not torn out of his cheque book and it does not pertain to the account maintained by him in the bank. So, mere denial that he had not issued the cheque would not be sufficient and seems to have taken the plea just to get rid of the payment outstanding against him.
The burden heavily lies upon the respondent, as in case of negotiable instrument, it is the defendant who is duty bound to prove contrary , because presumption is attached to the negotiable instrument, but even then the plaintif f has successfully proved and there is nothing in rebuttal on behalf of the defendant and as such the findings of trial Court are alien to law .
11. The respondent alleged that the writing upon the cheque was of one Muhammad Kashif who is employee of the appellant, however , no effort was made by the respondent for his production in the Court, nor any application for calling him has been filed by him in his regard. The story cooked up by the respondent has not supported with any cogent evidence. The respondent himself admitted that he used to sale the cards amounting to Rs.50,000/- to Rs.100,000/- daily, which proves that there were transactions of heavy amounts between the parties. For facility of reference, section 1 18 of the Act is reproduced as under: "118. Presumptions as to negotiable instruments Until the contrary is proved, the following presumption shall be made:-
(a) of consideration that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration;
(b) as to date that every negotiable instrument bearing a date was made or drawn on such date;
(c) as to time of acceptance that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;
(d) as to time of transfer that every transfer of a negotiable instrument was made before its maturity ,.
(e) as to order of endorsements-that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;
(f) as to stamps-that a lost promissory note, bill of exchange or cheque was duly stamped;
(g) that holder is a holder in due course-that the holder of a negotiable instrument is a holder in due course; provided that, where the instrument has been contained from its lawful owner , or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.
12. From plain reading of section 118 of the Act, it depicts that there is an initial presumption that a negotiable instrument/cheque is made, drawn, accepted or endorsed for consideration. Although the presumption is rebuttable yet the onus is on the person denying consideration to allege and prove the same. Therefore, under section 118 of the Act where the execution of the negotiable instrument was admitted, the burden of proof of non-payment of consideration would lie on the executant, which is lacking in this case. Reliance is placed upon a case reported as "Muhammad Arshad and another v. Citibank N.A., Lahore" (2006 SCMR 1347 ), the Honourable Supreme Court of Pakistan laid down that: "The learned Advocate Supreme Court on behalf of petitioners has ignored the fact that "person signing and delivering to another a paper stamped in accordance with law relating to stamp duty chargeable on negotiable instruments either wholly blank or having written thereon and incomplete negotiable instrument so that it may be made or completed into a negotiable instrument, prima facie authorizes recipient of such negotiable instrument to fill in required particulars. Presumption, held, would arise under section 188(b) regarding a negotiable instrument bearing a data as having been made or drawn on such date". National Commercial Bank Ltd. v. Muhammad Younus Butt 1980 CLC 90. We are conscious of the fact that "party to proceedings could discharge burden of proof placed upon him under provisions of section 118 of Negotiable Instruments Act, 1881 either by producing definite evidence showing that Consideration had not been passed or by relying upon facts and circumstances of case and also by referring to flaws in evidence of plaintiff and then contending that presumption had been rebutted ".
Chandan Lal v. Messrs Amin Chand Mohan Lal AIR 1960 Punjab 500; Sundar Singh v. Khushi Ram AIR 1927 Lahore, 864 which could not be done."
13. In another case reported as "Muhammad Azizur Rehman v. Liaqat Ali" (2007 SCMR 1820 ), the august Supreme Court of Pakistan elaborated that: "8. Similarly in the case of Haji Karim and another v . Zakir Abdullah 1973 SCMR 100 this Court held that:-- "Under section 118 of the Negotiable Instruments Act, 1881, there is an initial presumption that a negotiable instrument is made, drawn, accepted or endorsed for consideration. Although this presumption is a rebuttable presumption, yet the onus is on the person denying consideration to allege and prove the same."
10. (sic) In view of above discussion, we are of the view that burden of proof of non-payment of consideration where execution of a negotiable instru ment was admitted would be upon executant of document in which appellant/defendant has failed."
14. In the instant case, the respondent failed to rebut the statutory presumption raised under section 118 of the Negotiable Instruments Act, 1881 in that he did not lead evidence in disproof of the assertions made in the plaint, and proved by the appellant by adducing evidence.
15. Learned trial Court observed that: "14. Shehzad Rafique plaintiff is running a business of Franchise. Dawood Jameel PW.5 is acting as account of Shehzad Rafique plaintiff. The accounts of office are being maintained. Presumption of regularity is attached to the accounts maintained in the course of business. The plaintiff could have produced those accounts to establish that his version is transparent and true.
15. Shehzad Rafique plaintiff has withheld the best evidence, which was necessary to be produced. In case 'of its non-production the presumption would be against the plaintiff in view of dictum laid down in "M. Saeed Sehgal v.
Khurshid Hassan PLD 1964 SC 598 . "
The reason for dismissal of the suit of the present appellant made by the learned trial Court was that the appellant has failed to produce the best evidence. It would be advantageous to reproduce Article 129(g) of Qanun-e- Shahadat Order , 1984:
129. Court may presume existence of certain facts. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course to natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations The Court may presume--
(a) ................
(b) .................
(c) ....................
(d) ....................
(e) .....................
(f) ....................
(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it; There is no cavil to the proposition that above quoted Article reflects that it can be presumed that evidence which the petitioner withholds could be unfavou rable to him, if same is produced by him, however , said provision is not applicable to the present case as the respondent himself admitted that transactions were used to be made between the patties and not negated the version of the appellant that he did not have record of their transactions. The learned trial Court has erred in appraising the evidence in its true perspective and committed wrong in dismissing the suit of appellant/plaintif f.
16. Besides this, the pleadings of the respondent are contradictory with the evidence produced by him. It is settled law that parties could not go beyond their pleadings. Particulars of evidence need not to be mentioned in the plaint and same could be produced during recording of evidence. Reliance is placed upon "Muhammad Siddique v.
MBR/CSC, Punjab and others" (2017 MLD Karachi 770) wherein has been held that evidence must be in line of pleadings. It has also been held in "The State v. Anwar Saif Ullah Khan" (2016 PLD SC 730) that none of the parties to a judicial proceeding could be allowed to adduce evidence in support of a contention not pleaded by it and the decision of a case could not rest on such evidence.
17. In view of above, I am of the conside red opinion that the appellant establishe d his claim against the present respondent through production of convincing and cogent evidence whereas the respondent miserably failed to controvert the appellant and as such the findings of the learned trial court suffer from material illegality or material irregularity in this regard. Viewed by this appeal is allowed and suit of the appellant is decreed, accordingly . No order as to costs.