ABID HUSSAIN CHA TTHA, J.---- The brief facts of the case are that the Petitioner (State Life Insurance Corporation of Pakistan) filed a suit for recovery against the Respondents Nos. 1 and 2 (Allied Bank of Pakistan).
The Respondents filed their written statement and out of the divergent pleading s of the parties, the trial Court framed five issues. The parties led their respective evidence and trial Court passed Judgment and decree dated 17.09.2005, whereby , the suit of the Petitioner was decreed. The said Judgment and Decree was assailed in appeal and the case was remanded to the trial Court with the direction to provide reasonable opportunity for cross- examination with respect to PW's on 02.10.2006. Alter remand, the suit of the Petitioner was dismissed vide Judgment and Decree dated 26.11.2008. The Petitioner filed Appeal which was also dismissed on 07.03.2015.
Aggrieved from the Judgments and the Decrees dated 26.11.2008 and 07.03.2015, the Petitioner has instituted the titled Revision Petition before this Court.
2. Precisely , the Petitioner issued a crossed -- payees account only Cheque No. 060387 dated 05.06.96 (the "Cheque ") in favour of "Mr. Naseer Ahmad son of M. Shafi, A/C No. PLS-550, UBL, Circular Road" for Rs.36,903/- under Insurance Policy No. 50/9056869-4. By way of cutting, the name of "UBL" (United Bank Limited) was altered to "IBL" (Indus Bank Limited). The cutting was authenticated by additional signatures. The Cheque came in clearing before the Respondent Bank and was accordingly cleared.
3. It was alleged in the Plaint that 'someone' made the cutting in the said Cheque by altering the name of the Bank from UBL to IBL and the account number fraudulently and got it encashed with the gross negligence and carelessness of the Respondents. Had the Respondents be careful, this fraudulent act of encashment of the Cheque could have been avoided. It was also alleged that due to connivance of the Respondent No. 2, the Cheque has been encashed. Hence, the Respondents are liable to return Rs.36,903/- to the Petitioners.
4. The learned counsel for the Petitioner submitted that specific assertion was made regarding the Cheque that it was forged and fabricated in as much as the name of actual Payee was replaced by use of chemical fluid. Hence, it was the case of documentary evidence and could not to be decided on the verbal assertion of the witnesses. In this behalf, he stated that under Order XIV, Rule 1 of the Code of Civil Procedure, 1908 (the "C.P.C."), the Court was duty bound to frame issue regarding the use of chemical fluid arising out of the pleadings of the parties, even though, the Petitioner did not agitate the issues framed by the trial Court. In this behalf, he read out Issue No. 3 which is reproduced as under: - "Whether the Cheque No. 060387 dated 05.06.1996 of Rs.36,903/- has got encashed inspite of cutting and gross negligence and connivance of defendant No.2? OPP ."
He submitted that the trial Court failed to frame specific issue as to whether there was any application of chemical fluid on the encashed Cheque through which the name and designation of recipient of Cheque was changed. As such, by not framing the issue, the trial Court has committed material irregularity . He placed reliance upon case titled, Mst. Rasheedan Bibi and others v . Mukhtar Ahmad and others, 2008 SCMR 1384 .
5. He then contended that notwithstanding the above, evidence recorded was also misread by the trial Court. It was held in paragraph No. 7 of the Judgment of the trial Court that the authenticity or genuineness of the signatures which are present on the Cheque have not been called in question anywhere by the Petitioner . No official of the Petitioner appeared as a witness to deny his signatures on the cutting of the Cheque and to deny the change of name of the Bank over the said cheque. In this behalf, he stated that although the cutting is authenticated by signature but there is no counter signature. He stated that the trial Court erroneously relied upon the testimony of the PWs to conclude that the Petitioner has failed to prove any fraud or negligence in the encashment of the Cheque. Rather , the Courts below should have based their finding on documentary evidence only instead of relying upon the oral evidence of the witnesses. He accordingly , prayed that the impugned Judgments and Decrees be set-aside since the evidence has been misread in this case. He submitted that the Hon'ble Supreme Court of Pakistan has always set aside concurrent findings of fact when it is proved that the evidence has been misread or the case is suffering from jurisdictional defects. Reliance was placed on case titled Noor Mumtaz and others v.
Mst. Azmat-e-Bibi, 2012 SCMR 1337; case titled Muhammad Akhtar v. Mst. Manna and 3 others, 2001 SCMR 1700 ; and case titled Nazim-ud-Din and others v . Sheikh Zia-ul-Qamar and others, 2016 SCMR 24 .
6. Learned counsel for the Respondents vehemently contested the contentions put forward by the learned counsel for the Petitioner . He read out paragraph No. 3 of the plaint to assert that the issue No. 3 was rightly framed and there was no allegation of using chemical fluid on the Cheque anywhere in the plain t. Rather , the plaint only alleged cutting on the Cheque. He further submitted that the Cheque was presented in Indus Bank Limited as a crossed Cheque to be credited in the payee's account only and after routing through the State Bank of Pakistan, it came in clearing before the Respondent Bank for payment, therefore, there was no reason to decline its encashment.
Name of the payee was not changed but only the name of the Bank was changed by cutting which was duly signed and countersigned. Hence, this was a legal crossed Cheque and was accordingly , lawfully encashed by crediting the Payee's account. He stated that the Revision is beyond the scope of Section 115 of the C.P.C. since jurisdiction by the trial Court was rightly exercised and there is no misreading of evidence. The cases relied upon by the Petitioner are not applicable under the facts and circumstances of the present case.
7. Arguments heard and record perused.
8. As far as the framings of issues are concerned, the trial Court had rightly framed issue No. 3 in the light of the contents of the Plaint. Nowhere in the Plaint, it was alleged that there was use of any chemical fluid to erase the name of the payee or any other writing on the Cheque. Rather , it was specifically stated in the plaint that 'someone' made the cutting on the Cheque by altering the name of UBL to IBL as well as the account number fraudulently and got the Cheque encashed with the gross negligence and carelessness of the Respondent No.2. The use of chemical fluid by erasing the name of the payee was not alleged. Therefore, the contention that issues had not been rightly framed is without substance and in fact the Judgment of the Hon'ble Supreme Court of Pakistan relied upon was complied with in letter and spirit regarding framing of the issues. The Petitioner also never challenged the framing of the issues. Therefore, the contention raised by the Petitioner is without substance.
9. It is a matter of record that the Chequ e was received by the Respondent Bank in clearing, hence, the issue of forgery is ruled out. Even otherwise, fraud, forgery or connivance of any official of the Respondent Bank was not proved through evidence of record. It is quite clear that Cheque (Ex.P1) reveals that cutting was limited to change of name of the Bank from UBL to IBL and that too bears the signature and the coun ter signature and as such it was a legal tender . There was no objection with respect to receiving the Cheque from where it was deposited. The Respondent Bank was only a clearing Bank and there was no reason to suspect anything beyond that was apparent to naked eye. There is no evide nce on record as to who the actual culprit was and in whose account the money was actually credited. This could have easily been ascertained by the Petitioner with little inquiry from the recipient Bank but the Petitioner kept on pursuing the matter in hand without even identifying and making the alleged fraudulent person as a party in the suit. It is settled law that no effective decree or order can be passed in the absence of necessary party to the cause. Reliance is placed on case titled, Muhammad Siddique (Deceased) through L.Rs. and others v . Mst. Noor Bibi (Deceased) through L.Rs. and others, 2020 SCMR 483 .
10. Petitioner's own witnesses categorically stated that the cutting on the Chequ e was duly signed and it was a legal tender . No evidence is on record to establish any negligence, fraud or even lack of due care on the part of any official of the Respondent Bank. The Petitioner did not produce any evidence to the effect that the signatures on the Cheque or the cutting on the Cheque are different or forged. No application was filed to obtain the opinion of any hand writing expert or for forensic screening of the Cheque. No counterfoil of the Cheque book or Cheque issuing voucher was produced. Even the policy holder was not produced to testify that he has not received the- amount.
No specific particulars of fraud were specified in the plaint and no evidence was tendered in this respect.
Conversely , even the evidence of the PWs is against the Petitioner who admitted the stance of the Respondents and the PW-1 in particular was not declared hostile. Plaintif f's own witness, Muhammad Musa while appearing as PW-1 in cross-examination candidly deposed that there is signature on the cutting made on the Cheque and signatures on Cheque are correct. The assertion that there was signature which was not countersigned has not been proved by the Petitioner through any credible corroborative evidence because there are multiple signatures which have not been confronted. The perusal of the plaint does not disclose the particulars of fraud at all. The use of the word "someone" in the plaint is also vague and ambiguous. Even the charg e that the official of Respondent No. 2 was negligent and did not act with due care also could not be proved through tangible evidence. The authenticity and genuineness of the signature or countersignature on the Cheque were not questioned by the Petitioner . Even, the assertion that the payment has been made by the Respondent Bank to any other person instead of making payment to the person in whose name Cheque was issued was rebutted by the Petitioner's own witness Muhammad Musa (PW-1) who in his cross-examination has admitted that there are signatures on the cutting of the Cheque and no forgery was committed. There is no reason to dispute the concurrent findings of fact by the Courts below . Therefore, there is no misreading or jurisdictional defect in the impugned Judgments and Decrees. Accordingly , the titled Revision Petition is dismissed.