RAHEEL KAMRAN, J. Through this civil revision, the petitioner has challenged the order dated 11.12.2021 passed by the learned Additional District Judge, Hasilpur whereby his application under Article 84 of Qanun-e-Shahadat Order, 1984 has been dismissed.
2. Facts of the case, briefly are that respondent/plaintiff instituted a suit against the petitioner/defendant for recovery of Rs.3,502,500/- on the basis of a cheque in the Court of District Judge, Hasilpur. The petitioner/defendant appeared in the court and submitted petition for leave to appear and defend the suit, which was accepted on the basis of conceding statement of the respondent/plaintiff, whereafter the petitioner/defendant filed written statement. Out of divergent pleadings of the parties, issues were framed by the learned trial court and respondent/plaintiff was directed to adduce evidence in support of his stance. The respondent/plaintiff appeared before the learned trial court as PW-1 and produced Saeed-ul-Hassan as PW-2 and Muhammad Tazakat as PW-3. On 02.12.2021, the matter was fixed for cross-examination of PW-2 and PW-3 when the petitioner/defendant filed the aforementioned application for comparison of hand-writing on the disputed cheque, written reply whereof was filed by the respondent/plaintiff. The learned trial court, after hearing learned counsel for the parties, vide order dated 11.12.2021, proceeded to dismiss the said application. Hence, this civil revision.
3. Learned counsel for the petitioner/defendant submits that the petitioner/defendant never issued any cheque to the respondent/plaintiff rather he issued a blank cheque to the owner of petrol pump known as Basra Filling Station as guarantee in lieu of purchase of diesel for agriculture purpose; that the petitioner/defendant returned the entire amount to the owner of petrol pump but he did not return the disputed cheque to the petitioner/defendant with mala fide and ulterior motive; that writing on the disputed cheque is fake and fictitious; that application of the petitioner/defendant for comparison of writing on the disputed cheque has been dismissed erroneously by the learned trial court. In support of his contentions, he has placed reliance on "Mst. Sumaira Malik v. Malik Umar Aslam Awan and others" (2018 SCMR 1432), "Wahid Bakhsh v.
Additional District Judge and 5 others" (2014 MLD 130) "Muhammad Anwar v. Muhammad Yousaf and others" (2010 MLD 1745) and prayed for acceptance of instant civil revision.
4. Conversely, learned counsel for the respondent submits that the petitioner/defendant had purchased fertilizers from the respondent/plaintiff and in lieu thereof issued the cheque in question in his favour; that the petitioner/defendant in his written statement has admitted the issuance of cheque in favour of the respondent/plaintiff; that the petitioner/defendant frequently changes his signatures; that the petitioner/defendant could not advance any cogent reason for comparison of writing on the cheque in question; that the learned trial court has rightly dismissed the application of the petitioner/defendant. To fortify his stance, learned counsel has relied on Qazi Abdul Ali and others v. Khawaja Aftab Ahmad (2015 SCMR 284) Haji Abdul Majeed & Co. through Managing Partner v. Additional District Judge Burewala District Vehari and 10 others (2019 CLC 1693)
Messrs Waqar Enterprises and others v. Allied Bank of Pakistan and others (1999 SCMR 85)
Mst. Ummatul Waheed and others v. Mst. Nasira Kausar and others (1985 SCMR 214)
Muhammad Abdullah v. Muhammad Aslam (2014 CLC 1205) Muhammad Arshad and another v.
Citi Bank N.A Lahore (2006 SCMR 1347), Shahzad Rafique v. Najaf Iqbal (2021 CLC 569) and unreported case W. P. No.2908 of 2017 titled Syed Akhtar Hassan Shah v. District Judge Rahim Yar Khan and has prayed for dismissal of the titled civil revision.
5. Arguments heard and record perused.
6. From the perusal of the impugned order, it is manifest that the same is essentially passed on two grounds: firstly, that there is a direction issued by this Court to conclude the matter within a period of three months but the petitioner, instead of cross-examining the PWs, moved the application for comparison of his handwriting on the disputed cheque with his admitted handwriting only to prolong proceedings of the suit so that the said direction may not be complied with; and secondly, that the petitioner has not denied his signature on the cheque in, question.
7. As regards, conclusion of proceedings within the time period of direction given by this Court is concerned, the same does not stand in the way of right to fair trial of a party to proceedings as guaranteed by Article 10A of the Constitution of Islamic Republic of Pakistan, 1973 and a request for extension of time for compliance of the direction of this Court can be made provided the same is a reasonable one in the facts and circumstances of the case.
8. Before dilating upon the main controversy involved in the /is in hand, this Court deems it expedient to reproduce section 118 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "Act") hereunder: "118. 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 every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, 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 transfer; 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 indorsement; that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereen;
(f) as to stamp; 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 obtained 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 considerations, the burden of proving that the holder is a holder in due course lies upon him."
9. It is well settled by now that the Act provides that until the contrary is proved, it shall, inter alia, be presumed that every negotiable instrument was made or drawn for consideration; that every negotiable instrument bearing a date was made or drawn on such date; and that the holder of a negotiable instrument is a holder in due course. Although this is a rebuttable presumption yet the onus is on the person denying consideration to allege and prove the same. Reliance in this regard is placed on the case of Aziz-ur-Rehman v. Liaqat Ali (2007 SCMR 1820). In the case of Muhammad Arshad v. City Bank N.A, Lahore (2006 SCMR 1347) the Hon'ble Supreme Court has held that where one person signs and delivers to another paper stamped in accordance with law, either wholly blank or having written thereon incomplete negotiable instrument, in order that it may be made, or completed into negotiable instrument, he thereby gives prima facie authority to person who receives that paper to make or complete it as case may be into negotiable instrument for any amount. Be that as it may, in the aforementioned case it has further been held that a defendant could discharge burden of proof placed upon him under Section 118 of the Act by producing reliable evidence showing that consideration had not been passed or by relying upon facts and circumstances of the case and also by referring to flaws in the evidence of plaintiff and then contending that presumption had been rebutted.
10. In this case as the petitioner has not denied his signature on the cheque in question, therefore, the burden of proof is on him to rebut the presumption under Section 118 of the Act to prove that the same was without consideration or by relying upon facts and circumstances of the case and also by referring to flaws in the evidence of plaintiff. Undoubtedly, Article 84 of the Qanun-e- Shahadat, 1984 empowers the Court to compare the signature, writing or seal with others admitted or proved, however, whether or not to exercise such discretionary power by the Court depends upon the facts and circumstances of each case and while invoking provisions of the said Article, the Court can make a comparison itself or refer the same to a handwriting expert. Reliance in this regard is placed on the cases of Rehmat Ali Ismailia v. Khalid Mehmood (2004 SCMR 85). Be that as it may, it is a settled principle of law that report of a handwriting expert on its own cannot be made basis to discard the direct evidence and when direct evidence is available, there is no need for expert opinion, which otherwise is nothing but confirmatory and explanatory to direct evidence as has been held in the Judgment of Hon'ble Supreme Court of Pakistan in the case of Qazi Abdul Ali and others v. Khawaja Aftab Ahmad (2015 SCMR 284).
11. The petitioner has yet to complete his cross-examination of the witnesses produced by the plaintiff and lead evidence to discharge his burden under Section 118 of the Act. His application seeking comparison of the handwriting on the cheque in question by a handwriting expert was misconceived in view of the law reiterated herein above, therefore, the same has been rightly dismissed by the learned trial Court. The case law relied upon by the petitioner in support of his contentions is clearly distinguishable on facts as none of those cases relate to negotiable instruments wherein presumption under Section 118 of the Act is applicable.
12. For the foregoing reasons, this civil revision is dismissed being devoid of any merit.