SULTAN TANVIR AHMAD, J. Present Regular First Appeal has been filed against Judgment and Decree dated 24.12.2020, passed by learned Additional District Judge, Layyah, in Civil Suit No.6/1 of 2013 filed under Order XXXVII of the Code of Civil Procedure, 1908, whereby counter claim of Rs.3,700,000/- has been decreed against the Appellant.
2. Facts, necessary for the disposal of the present case, are that Appellant filed a suit for recovery of Rs.4,000,000/- under Order XXXVII of the Code of Civil Procedure, 1908. As per the contents of the plaint, money amounting to Rs. 4,000,000/- was borrowed by the Respondent in the presence of Arif, Rehmat Ali and Muhammad Sarwar and promised to return the aforesaid loan. Cheque No.4215524 dated 18.05.2012 amounting to Rs.4,000,000/- of Muslim Commercial Bank Limited was issued, which was dishonored on presentation.
3. Muhammad Asif/Respondent filed leave to appear and defend in terms of Order XXXVII, Rule 2(2) of the Code of Civil Procedure, 1908 which was allowed and the written statement was filed. In the aforesaid leave as well as the written statement it is pleaded that Rs.3,700,000/- is payable by the Appellant. In this regard, he relied upon two cheques bearing No.7515342 dated 08.07.2012 amounting to Rs.2,200,000/- of Muslim Commercial Bank Limited, Layyah and cheque No.05412221 dated 24.02.2012 amounting to Rs.1,500,000/- of Habib Bank Limited, Choubara Road Branch Layyah. Out of the contest between the parties, following issues and additional issues were framed:-
1. Whether the plaintiff is entitled to recover an amount of Rs.40,00,000/- (forty lac) from the defendant on the basis of cheque No. 4215524 dated 18.05.2012? OPP
2. Whether the plaintiff has no cause of action and locus standi to file this suit? OPD
3. Whether the plaintiff is estopped by his words and conduct to file this suit? OPD
4. Whether the plaintiff has not filed this suit with clean hands, hence is liable to be dismissed?
OPD
5. Relief.
ADDITIONAL ISSUES 4-A Whether the defendant is entitled to recover Rs.37,00,000/- from the plaintiff as alleged in preliminary objection No.1 of the written statement? OPD 4-B Whether the plaintiff has not paid the court fee in line with direction of the court, hence suit is liable to be dismissed? OPD
4. Appellant appeared as PW-1 in support of his claim and produced Rehmat Ali, Arif Hussain as well as Abdul Jaleel as PW-2 to PW-4, respectively. To further support his claim, Exh.P1 to Exh.P9 were brought on record. Respondent appeared in the witness box as DW-3. Sajjad Ali and Muhammad Munir appeared to support his claim as DW-1 and DW-2. Beside other documents, Respondent produced photocopies of the aforesaid cheques bearing No.7515342 dated 08.07.2012 amounting to Rs.2,200,000/- of Muslim Commercial Bank Limited and cheque No.05412221 dated 24.02.2012 amounting to Rs.1,500,000/- of Habib Bank Limited which were brought on record as Exh.D1 and Exh.D2.
5. On 24.12.2016 learned trial Court gave issue-wise findings and suit of the Appellant was dismissed, whereas the claim of Respondent, for Rs.3,700,000/-, was decreed. Aggrieved from the same, this Regular First Appeal has been filed.
6. Mr. Waseem Sarwar Khan, Advocate for the Appellant contended that settled rules of pleadings have been breached by the learned trial Court and at the same time Impugned Judgment and Decree is passed in defiance of law of Evidence. He focused and confined his arguments against the grant of Decree against him and also contended that when the suit of the Plaintiff/Petitioner was dismissed, the set-off claim could not survive, which at best could have been considered as defense. On the other hand, Mr. Muhammad Masood Bilal, Advocate for the Respondent vigorously supported the Impugned Judgment and Decree. He has argued that Decree is granted on the basis of evidence of the Respondent/Defendant. Learned counsel for the parties, during arguments have raised following questions:-
(i) Whether the learned Court is justified to allow the counter claim, keeping in view that the Respondent never filed any suit and the set-off could merely serve as a defense?
(ii) Whether in paragraph No.20 of the Impugned Judgment, the learned trial Court has rightly drawn the negative inference for not filing the rejoinder/written statement and the findings given in the said paragraph prejudiced the findings on the remaining issue?.
(iii) If the set-off claim can survive upon break down of the main claim?
(vi) Whether the set off claim could have been decreed on the strength of the photocopies of the two cheque(s) and whether the learned trial Court is justified in accepting on record the photocopies of the documents in view of Section 76 of the Qanun-e-Shahadat Order, 1984.
8. There is no cavil left in the preposition, after law laid down by the Honourable Supreme Court of Pakistan, in cases titled "Syed Niamat Ali and 4 others, v. Dewan Jairam Dass and Another"(PLD 1983 Supreme Court 5), Syed Ahmad Saeed Kirmani v. Messrs, Muslim Commercial Bank Ltd., Islamabad (1993 SCMR 441) and "Civil Aviation Authority, Quaid-e-Azam, International Airport, Karachi v. Japak International (Pvt.) Limited, Lahore" (2009 SCMR 666) that although a counter claim which is neither a legal set-off nor an equitable set-off, however, there is nothing in the statutory law or otherwise, precluding a Court from treating a counter claim as a plaint, provided it contains all the necessary requisites sufficient to be treated as a plaint. The relevant part of case titled "Syed Niamat Ali and 4 others v. Dewan Jairam Dass and another" (supra) is as under:- "---It has, however, been held that although a counter-claim which is neither a legal set-off nor an equitable set-off yet there is nothing in law-statutory or otherwise, which precludes a Court from treating a counter claim as a plaint, in a cross suit. The reasons advanced in support of this view that the Court has such a power are that, although a counter claim incorporated in the written statement does not conform to the requirements of the Code relating to contents of a plaint, this by itself is not sufficient to deny the Court, the power and jurisdiction to read and construe the pleadings in a reasonable manner, that the Court is not prevented from separating the written statement proper from what was described as a counter claim and treating the latter as a cross suit, and if the counter claim contains all the necessary requisites sufficient to be treated as a plaint making a claim for the relief sought, it would be open to a Court to convert or treat the counterclaim as a plaint in a cross suit. If the Court is so inclined, then the date of filing of such converted plaint in a cross suit will be the date on which the written statement containing the counter claim is filed and the maintainability of the cross suit contained in the counter claim would be determined with reference to that date. There are very weighty considerations in support of the view and I have no hesitation in accepting it as the correct of exposition of law".
(Emphasis supplied)
9. Here, it will also be advantageous to reproduce the relevant part of Order VIII, Rule 6 of the Code of Civil Procedure, 1908:- "6. Particulars of set-off to be given in written statement.-
1. Where in a suit for the recovery of money the defendant claims to set-off against the plaintiff's demand any ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction, of the Court, and both parties fill the same character as they fill in the plaintiff's suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, present a written statement containing the particulars of the debt sought to be set-off.
2. Effect of set-off.---(2) The written statement shall have the same effect as a plaint in a cross- suit so as to enable the Court to pronounce a final judgment in respect both of the original claim and of the set-off; but this shall not affect the lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree.
3. The rules relating to a written statement by a defendant apply to a written statement in answer to a claim of set-off.
(Emphasis supplied)
10. The above referred provisions depict that the rules relating to a written statement by a defendant, also apply to a written statement in answer to a claim of set-off. Furthermore, Order VIII, Rule 9 of the Code of Civil Procedure, 1908, which restricts the filing of pleading, subsequent to written statement in normal cases, also provides that if the written statement contains a set-off, the restriction contained therein does not apply. Therefore, the rules of pleading that apply after filing to normal claim also apply to the counter claim/set-off in written statement.
11. Contrary to the above, the learned trial Court after filing of counter claim fixed the case for framing of additional issues and thereafter, called and recorded the evidence. The case was never fixed for filing of written statement or rejoinder to the counter claim, as required under Order VIII, Rule 10 of the Code of Civil Procedure, 1908. Without calling upon the Appellant or putting the notice to file written statement or replication or rejoinder, to the claim of the Respondent-Defendant, not just a negative inference is drawn by the learned trial Court but reading of paragraph No.20 of the Impugned Judgment, reveals that this failure to file the rejoinder or written statement has been taken as admission to the claim of Respondent-Defendant, which clearly caused prejudice to the case of the Appellant. The concluding part of paragraph 20 of the Impugned Judgment is as under:- 'This situation clearly evinces that the plaintiff has admitted the claim of set off of the defendant amounting to Rs. 3,700,000/-.
12. Next point that came up for consideration is the survival of the claim in set-off, when the claim in the suit of the Petitioner / Plaintiff was dismissed. In my assessment, the claim of set-off survives even if the claim of the Plaintiff breaks down for any reason. Reliance can be placed "Muhammad Khalid v. Muhammad Adnan Qureshi" (2018 CLC 585), "Jamandass Nagindass v. Beharilal Bishweshwarlal Zunzunwalla" (AIR 1941 Nagpur 258), "(Firm) Bansi Dhar Kunji Lal v. Lalta Prasad and another" (AIR 1934 Allahabad 543). In "Muhammad Khalid v. Muhammad Adnan Qureshi"
(supra), the Division Bench of the Honourable Islamabad High Court decided as follows:- ....As per our estimation, the claim of the set-off survives and the same requires separate adjudication, even in cases where plaintiff has failed to prove his case or has withdrawn the claim, the learned Trial Court is under obligation to frame a separate issue of set-off raised in the written statement by the defendant and adjudicate upon the matter in terms of Order XIX, C.P.C.
13. As far as the arguments of the learned counsel for the parties, regarding accepting photocopies of the cheques and other documents are concerned, Section 76 of Qanun-e-Shahadat Order, 1984 clearly provides that secondary evidence as to the existence, conditions or contents of documents can be given in limited circumstances which are narrated in Article 76 (a to i) of Qanun-e- Shahadat' Order, 1984. Article 76 (a) of Qanun-e-Shahadat Order, 1984 has been debated before this Court, which is as follows:-
76. Cases in which secondary evidence relating to document may be given. Secondary evidence may be given of the existence, condition or contents of a document in the following cases: a) when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court; or of any person legally bound to produce it; and when, after the notice mentioned in Article 77, such person does not produce it; b) XXXXX c) XXXXX d) XXXXX e) XXXXXXXXXX g) XXXXX h) XXXXX i) XXXXX
14. Reading of the same reveals that secondary evidence can only be tendered, if the document is in the possession of person against whom it is required to be proved or the person is out of reach or he is not subject to process of the Court or any person who is legally bound to produce it; and such person has not produced the same despite notice. The condition to produce the secondary evidence is the notice to the party in whose possession or power the document is unless the case falls in the proviso of Article 77 of Qanun-e-Shahadat Order, 1984.
15. In the present case, the documents (Exh.D1 and Exh.D2) along with dishonor-slips are in the possession of police-authorities in connection with criminal case FIR No.584/12 dated 08.07.2012 under Section 489-F of P.P.C. registered at Police Station City, District Layyah. The documents in question are not beyond the reach of learned trial Court and the original could have easily been procured, compared and exhibited. Photocopies of the dishonor-slips are on record without examining its maker. When these photocopies were exhibited by DW-1 on 14.03.2019, the objection was raised, as evident from the following parts of examination-in-chief:
16. Learned counsel for the parties were asked as to whether at any stage of the trial, learned Court has ever decided these objections, both learned counsel for the parties conceded that these objections were never decided. This position is also apparent from reading of the Impugned Judgment and record. The reliance by learned trial Court on the photocopies rather bringing the same on the record when the primary evidence is readily available is contradictory to aforesaid provisions of law. This Court in cases titled "Azhar Abbas and others v. Haji Tahir Abbas and another" (2021 CLC 1351), "Razia Begum v. Abdul Aziz" (2006 CLC 772) and "Danial Shafqat v.
Nasreen" (2005 YLR 1185) has already observed that admitting photocopy of documents in evidence and reading the same without observing legal requirements of Article 76 of the Qanun-e- Shahadat Order, 1984 would be illegal. The relevant part of the judgment in Azhar Abbas and others (supra) is as follows:- "6. In the present case the situation remained the same, but the learned Courts below have not considered and dilated upon the requirement of law because admitting photocopy of a document in evidence and reading the same in evidence without observing legal requirements of Article 76 of the Qanun-e-Shahadat Order, 1984 would be illegal. Reliance is placed on Feroz Din and others v. Nawab Khan and others (AIR 1928 Lahore 432) Fazal Muhammad v. Mst. Chohara and others (1992 SCMR 2182) and Abdul Rehman and another v. Zia-ul-Haque Makhdoom and others (2012 SCMR 954). Neither authors of the documents nor the witnesses nor such documents in original have been produced in Court for inspection purposes. Thus, such documents, without formal proof, cannot be relied upon; reliance is placed on Khan Muhammad Yousaf Khan Khattak v. S.M. Ayub and 2 others (PLD 1973 SC 160), but as against this, the learned Courts below placing reliance on such documents have proceeded to pass the impugned judgments and decrees, which cannqt be allowed to hold field".
(Emphasis supplied)
17. I am further fortified in my view by the law laid down by the Honourable Supreme Court of Pakistan in the cases titled Abdul Rehman and another v. Zia-ul-Haque Makhduoom and others (2012 SCMR 954) and Abdul Rahman through L.Rs. v. Haji Muhammad Yousaf through L.Rs (2007 SCMR 61).
18. The above-referred principles have not been followed by the learned trial Court while passing the Impugned Judgment. The learned Court is bound to adjudicate upon the claim of set-off by considering and observing all the principles of pleadings, Code of Civil Procedure, 1908 and the Qanun-e-Shahadat Order, 1984. Findings of learned trial Court, in the given circumstances of the case, are unsafe and the Impugned Judgment and Decree is against the settled law, therefore, the same is set-aside. Instant Regular First Appeal is allowed and the case is remanded to the learned trial Court, which shall hold de novo trial.