MUHAMMAD FAISAL KAMAL ALAM, J. On 19.11.2020, arguments were heard on Review Application [C.M.A. No.6024 of 2020]. After few days, as directed in the order, both learned Advocates filed their respective Written Synopsis along with the case law, which is part of the record. On the same day, another application of Plaintiff being C.M.A. No.11043 of 2020, was allowed and time was enlarged for filing of the amended plaint, which has been filed.
2. The present dispute relates to grant of ad-interim injunctive order to Plaintiff in respect of the cheques. It is necessary to give a brief background of present litigation as reflected through different orders passed on different dates.
3. Originally, suit has been filed against Defendant No.1 -- Rizwan Riaz and number of other Banks from Defendants Nos.2 to 7, Cantonment Board Malir -- Defendant No.8 and Sindh Police Defendant No.9. It is averred that a fraud was perpetuated upon Plaintiff by Defendant No.1, when the latter formed a brokerage house by the name 'Royal Securities Private Limited'. Number of reliefs have been claimed in the original plaint as well as in the amended plaint including with regard to cheques in dispute, that the same be declared in the unlawful possession of Defendant No.1 and the cheques mentioned in Paragraph-20 should be cancelled. It is averred that all the cheques mentioned in the plaint were stolen by Defendant No.1 from the residence of Plaintiff while he was in Dubai. The matter was reported to Police. Under Paragraph-20 of the original plaint, cheques were enlisted, regarding which the above prayer clause relates and the same are reproduced herein under_
1. Dubai Islamic Bank -- 01882701 to 5G;
2. Summit Bank -- 05493296 to 05493345;
3. JS Bank -- 40259236 to 20359335 (sic);
4. Bank Al Habib -- 10524981 to 10525030.
4. On 21.11.2019, status quo was granted for the above cheques (mentioned in Paragraph-20 of the plaint). It was also directed that Suit No.1432 of 2019 filed by above Defendant No.1 -- Rizwan Riaz be tagged with the present lis.
On 15.07.2020, it was observed that above Suit No.1432 of 2019 has been compromised and a copy of the order was taken on record. It was further contended that present Plaintiff was under the impression that instant lis would also be settled and he recently learnt that further cheques, which were not in knowledge of Plaintiff, are also in possession of Defendant No. 1. Consequently, ad- interim order was extended to cheques 30071003, 23007108 and 37901083 of JS Bank and Cheque Book along with cheques in respect of Account -No.1096331 maintained with JS Bank (belonging to Plaintiff).
On 29.07.2020, the applications, filed by the then intervenors and now Defendants Nos.10 and 11, were heard, who are represented by Mr. Khawaja Shams ul Islam, Advocate. He contended that on 08.07.2020 an FIR was already lodged by Defendant No.10 (Muhammad saved Aslam) for cheque No.05493306, 37901083 and 30071003. A Constitutional Petition No D-3182 of 2020, was also referred to a copy whereof was filed with one of his listed applications and it was averred that this fact was not disclosed to this Court. Following two questions were framed on that day. "i) Whether on the basis of a restraining order passed in a Civil Suit, can FIR lodged earlier in time be stayed? ii) Can a restraining order be extended to an early dishonored cheque?"
5. After hearing learned counsel for the parties, an application under Order I, Rule 10 of Civil Procedure Code, 1908 ("C.P.C.") for becoming Defendants in the present suit, (preferred by present Defendants Nos.10 and 11) was granted and it was permitted that with the amended title, the plaint itself can also be amended without changing the complexion and nature of the suit. It was, however, ordered that since FIR No.191 of 2020 was lodged on 08.07.2020, therefore, the stay order of 15.07.2020 stood modified and would not be extended to FIR lodged prior in time and criminal proceeding will continue and conclude strictly in accordance with law. However, with regard to FIR No.328 of 2020, which was lodged on 18.07.2020, that is, after above stay order of 15.07.2020, since was covered by Question No. ii (as reproduced hereinabove), it was to be decided on the subsequent dates after filing of Affidavit-in-Rejoinder to the Review Application.
6. On 19.11.2020, the matter was reserved for passing order on the Review Application.
7. Mr. Muhammad Nouman Jamali, learned counsel for the Plaintiff, has argued that Plaintiff is already facing hardship due to illegal activities of Defendant No.1; who not only committed the breach of trust but has also stolen various cheque books of Plaintiff as averred in the plaint, thus, cheques were misused, because the same were handed over to various parties, including present contesting Defendants Nos.10 and 11, but without any consideration. It is argued that both Defendants Nos.10 and 11 did not notify Plaintiff about the alleged dishonouring of cheques and hence neither there is any material placed on record after passing of initial ad-interim injunctive order nor any new facts have been brought on record, which can justify review of ad-interim order passed by this Court. Bona fide of Plaintiff can be considered from the fact that he gave public notice on 09.06.2020, a copy whereof is already on record, mentioning the fact about misuse of cheque by Defendant No.1; pleadings of newly added Defendants Nos.10 and 11 are self- contradictory. He has made reference to Annexure CA/4 appended with the Counter Affidavit of Plaintiff to the Review Application, which is a complaint dated 11.06.2020 made by Defendant No.10 (Muhammad Javed Aslam) to SHO Malir Cantonment, wherein the former has stated that he is in possession of other cheques worth Rupees Thirty Million given by Plaintiff, but in fact the dishonoured cheques (as alleged) appended with the Review Application purportedly bears the name of Defendant No.11 (Muhammad Naeem Sajid), thus, pleadings of Defendants Nos.10 and 11 are self-contradictory and hence the Review Application is to be dismissed. Further contended that Plaintiff himself is a victim of fraud and cheating and, therefore, is entitled to temporary injunction and the ad-interim injunctive relief was correctly granted by this Court. In support of his arguments that no case for review of earlier order, whereby, ad-interim injunction was granted, is made out, by Defendants Nos. 10 and 11 and the application of Review under consideration should be dismissed.
Learned counsel for the Plaintiff has cited the following decisions_ i. PLD 2003 Karachi.page 691 [Jehan Khan v. Province of Sindh and others]; ii. PLD 2020 Sindh page 678 [Digri Sugar Mills Limited Karachi and 2 others v. Mian Kamran Ilahi through L.Rs. and 8 others] -- Digri Sugar Mills; iii. PLD 1963 Supreme Court page-163 [Fine Textile Mills Ltd., Karachi v. Haji Umar]; iv.PLD 2010 Supreme Court page-483 [Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another]; v. PLD 1976 Lahore page-1173 [Muhammad Hussain and 6 others v. Farzand Ali and 3 others]; vi. PLD 1968 Dacca page-779 [Messrs A.R. Bhuiyan & Co. Ltd. v. Messrs Centrotex Foreign Trading Corporation]; and vii. PLD 1995 Quetta page-5 [Mistri Muhammad Ramzan v. Noor Muhammad and 2 others].
8. The above arguments were controverted by learned counsel for newly added Defendants Nos.10 and 11. It is argued that in view of the specific bar under Sections 56 (a) and (e) of Specific Relief Act, 1877, no stay can be granted against initiation of a criminal proceeding. The Plaintiff and Defendant No.1 are in league with each other and due to stay order passed by this Court initially on 15.07.2019, Police Officials / Defendant No.9 is reluctant to register the FIR and prosecute the Plaintiff.
Further contended that in FIR No.483 of 2020, lodged by Defendant No.11, Investigating Officer has filed a final Report under 'C' Class by taking shelter of the present proceeding. It is further stated that Plaintiff and his wife (Naima Atif) have been declared as Proclaimed Offenders under Sections 87 and 88 of Criminal Procedure Code, 1898, by learned 4th Judicial Magistrate, Malir Karachi, in Case No.415 of 2020 in respect of FIR No.191 of 2020 lodged by Defendant No.10 and hence the Plaintiff is not entitled for any equitable relief. It is argued that these facts were never brought to the knowledge of this Court and since now same have been pleaded in the Review Application under consideration and the earlier application filed under Order I, Rule 10 of C.P.C. [C.M.A. No. 11043 of 2020], which was granted on 30.07.2020, therefore, considering these new relevant facts, ad- interim injunction order may be vacated. In support of his arguments, he has cited the following case law_ i. 2018 PCr.LJ page 145 [Saifullah Khan v. VIth Additional District and Sessions Judge (East), Karachi and 7 others]; ii. PLD 2014 Sindh page-264 [Khurram Naseemuddin v. Federation of Pakistan through Director General FIA Islamabad and 2 others]; iii. 2011 CLC page-124 [Syed Ali Firdausi and 3 others v. Naveed Jahangir]; iv. 2010 YLR page-1819 [Imran Ullah Khan v. Station House Officer and 2 others]; and v. 2010 CLC page-1285 [Shalimar Soap Factory through Managing Partner v. Zulfeqar Industries Limited through Managing Director].
9. The gist of precedents relied upon by Plaintiff's counsel is, that if no Affidavit-in-Evidence lis filed, the facts narrated in the Counter Affidavit would be accepted as true; where agreements are not disputed for supply of goods and contain clause of personal guarantees and post-dated cheques were given in pursuance only as security and Defendant has filed a counter suit for specific performance relying upon the same agreements and criminal proceeding was pending in the matter, then in such a peculiar circumstances, injunction (temporary) was granted by confirming the earlier ad-interim injunctive order; presumption as envisaged in Section 118 of Negotiable Instruments Act, 1881, the negotiable instrument is given for consideration, and that presumption is rebuttable one and the onus is on the person denying the consideration; where a criminal liability depends entirely upon adjudication of claim in a civil litigation, the criminal proceeding can be stayed, inter alia, in respect of offence punishable under Sections 420, 489-F (for dishonouring of cheque) and 506-B, P.P.C.; review is not meant for getting the matter reheard and dis-satisfaction of any party to the proceeding would not make him entitled to file a review; basically review proceeding can be invoked when a person is aggrieved on account of discovery of new and important matter or evidence, which was not within his knowledge or could not be produced by him at the time the decree was passed and order was made or on account of some mistake or error apparent on the face of the record; main object of review is to enable same forum for correcting its own error which inadvertently occasioned, on account of some., defect, clerical or arithmetical mistake, discovery of new and important matter which was not within the knowledge and could not be produced by due diligence or any other sufficient cause, at the relevant tithe, when the order was passed. The review jurisdiction cannot be exercised or invoked for rectifying improper appreciation of legal or factual aspects already existing on record, negligence of party as well so also possibility of having different view or any similar defects.
10. On the other hand, the gist of the case law cited by learned counsel for Defendants Nos.10 and 11, is that in a civil proceeding, in view of Section 56(c) of the Specific Relief Act, 1877, criminal proceeding cannot be stayed; suit against FIA (Federal Investigation Agency) was dismissed by this Court by observing that the FIA is competent to inquire into fraudulent acts and if Plaintiff (of the reported case) has a remedy, it is in the shape of quashment only; in the event, if threat to life is felt, then an appropriate remedy is not a civil suit but the forum prescribed in the statute and in these circumstances, injunction was refused; no relief under writ jurisdiction was extended to the petitioner (of the reported case) considering the fact that agreement of sale exists between the, parties and cheque given in pursuance thereof was dishonoured; even no injunction can be granted, in civil proceeding by a court when cheque was dishonoured prior to issuance of stay order, consequently, the order or learned Justice of Peace / Additional Sessions Judge was maintained by the learned Lahore High Court, whereby, parties were directed to approach the concerned Police Station for registering of case. Plaint was rejected by this Court under Order VII Rule 11 of C.P.C. on the ground that no nexus can be established between Plaintiff (of the reported case) and the person nominated in the FIR, alleged by defendant. Suit was dismissed by holding that in fact Plaintiff (of the reported case) in effect seeking quashment of FIR besides requesting for an injunction relief against defendants and investigation agency, which cannot be granted in such type of proceeding, inter alia, in view of, the bar mentioned under Section 56(a),(b),(c),(d) and (e) of the Specific Relief Act, 1877. Learned Lahore High Court has held, that since dishonouring of the relevant cheque was prior to issuance of an injunctive order by Civil Court, thus offence, if any, had already been committed; it is., however, held "Apart from that laying of an information before the police regarding commission of d cognizable offence cannot be stopped by a Civil Court. It goes without saying that no injunctive order can be issued against the law."
11. At this stage only undisputed record can be considered. With the plaint, record of other litigation has been produced, which is perused. A Civil Suit No.263 of 2019 has been filed by present Plaintiff against different Defendants, primarily, seeking injunctive relief against encashment of cheques, on the ground that cheques were given to the said defendants only as security / guarantee, in view of the facts that defendants (of above Suit No.263 of 2019) made investments with present Plaintiff in different ventures. Another Suit No.1432 of 2019, filed in this Court by present Defendant No.1 against the present Plaintiff and two other private persons (ibid), wherein, the present Defendant No.1 (being Plaintiff) has alleged that present Plaintiff (Atif Shabbir) and other Defendants of the suit had stolen three cheques and subsequently were given by said defendant No.1 (that is, present Plaintiff) to other defendants with mala fide intention. Consequently, an injunctive relief was sought against those cheques. Record further shows that an application under Order XXIII, Rule 3 of C.P.C. between present Defendant No. 1 and defendants of the above suit, excluding the present Plaintiff, was filed and as per the averments of present plaint, the said suit has been compromised. Present Defendant No.1 (Rizwan Riaz) also filed a Summary Suit No. 10 of 2019 against present Plaintiff (Atif Shabbir) in respect of another dishonoured cheque.
12. Written Statement filed by Defendant No.7 -- Summit Bank is relevant. In paragraph-2, it is specifically stated that loss of cheques No.05493296 to 05493345 were not intimated to Defendant No.7, prior to the stay order. It is further mentioned that Defendant Bank in compliance of stay order of 21.11.2019 has stopped payment. This is material, Plaintiff should have informed the Defendant No. 7 (Summit Bank) about his stance in writing, even prior to filing of the present lis.
13. Documents appended with the Review Application and synopsis as well as Statement dated 03.11.2020 filed by Defendants Nos.10 and 11 through their Advocate have been considered.
14. Main stance of Defendant No.10 in the Review Application is, that Defendant No.11 in the month of April, 20'8, gave an amount of Rupees Five Million to Plaintiff for investment in business, but when no profit was received by said Defendant No.11 from Plaintiff, he demanded the return of his investments and ultimately Plaintiff gave him a cheque No.30071006 for Rupees Five Million, which upon presentment was dishonoured. Defendant No.11 tried to contact Plaintiff, but his cell phone was continuously switched off.
15. Plaintiff has filed a Counter Affidavit to the Review Application and has stated, inter alia, that Defendants Nos.1 and 10 are in league against Plaintiff and the cheques in question were mis-used by Defendant No.1 through Defendant No. 10 and they were later handed over to Defendant No.11; there is no privity of contract between Plaintiff and these Defendants Nos. 10 and 11 and hence disputed cheques are without any consideration. It is averred in the Counter Affidavit that Defendants Nos. 10 and 11 have violated the interim restraining orders of this Court since Defendant No.11 lodged three different FIRs in respect of disputed cheques with the Police Station. Copies of these FIRs are appended with the Counter Affidavit as CA/1, CA/2, CA/3.
16. One of the FIRs lodged by Defendant No. 11, being 483 of 2020 dated 27.07.2020, Defendant No.9 (-Police) has submitted a challan under Section 173 of Cr.P.C. before the learned Trial Court and of the opinion that the same be may be disposed of as 'C' class, due to the fact that the present lis is sub iudice and restraining order is operating. However, the above opinion has been rejected by the learned Trial Court as is apparent from the proceeding diaries appended with the said Statement of learned counsel for Defendants Nos.10 and 11. On 23.09.2020 while ordering that Atif, wife of present Plaintiff, non bailable warrant was issued to surety.
17. Moreso, with the above referred Statement of Advocate of Defendants Nos.10 and 11, an order dated 13.08.2020 in. Criminal Petition No.1124 of 2020 is also appended. This petition was preferred by present Plaintiff seeking directions to register FIR against proposed accused, including present Defendant No.1. The petition was disposed of by observing that according to Police Report, applicant (that is present Plaintiff) is involved in number of criminal cases, inter alia, concerning dishonouring of the cheques. However, it was observed that the observations made in the order will not have an adverse impact on any criminal case or investigation.
18. If the above discussed facts are seen in the light of case law cited by both learned counsel for Plaintiff and Defendants, then prevalent judicial view is that there is no absolute restriction on the Court in terms of Section 56 of Specific Relief Act, 1877, for not granting injunction in respect of cheques and negotiable instruments, where the circumstances so permit. However, the case of Digri Sugar Mills (ibid) along with other reported decisions as relied upon by learned counsel for Plaintiff is distinguishable from the facts of present case. In the present lis cheques in question and the transaction(s) are in dispute. Secondly, the facts which have been brought on record through Review Application, particularly, the pendency of criminal case were not before the Court. Thirdly, Plaintiff has also claimed damages in the prayer clause.
At the same time lodging of FIRs which are appended with the Counter Affidavit of Plaintiff and the record and proceeding of one of the FIRs appended with the Statement of counsel for Defendants Nos.10 and 11 (as discussed above), shows that arguments of Advocate for Defendants Nos.10 and 11 are meritless, where it is contended that the stay order passed in the present lis has an effect of quashing the FIRs and is in violation of Section 56 of Specific Relief Act.
19. Conclusion is that in view of the above discussion, that, is, where criminal proceedings and other civil litigation between the parties hereto relating to the dishonouring of cheques are sub judice, besides, complaints about alleged fraud and cheating against Plaintiff, cannot justify that a restraining order be granted to Plaintiff, which can have an adverse influence on any pending or future proceeding. Present case of the Plaintiff is not confined to a cheque or few cheques given in pursuance of some undisputed transaction, which can justify a restraining order, in order to forestall further complications in the matter or multiplicity of the proceedings. Here as per own version of the. Plaintiff, numerous cheques in question are in possession of different persons regarding which Plaintiff has taken different stance, which require a proper trial. An interlocutory order cannot be extended even indirectly to those and to such matters which are not before the Court. Whether those cheques in dispute were for consideration or to which Section 118 of Negotiable Instruments Act, 1881, is applicable or not, cannot be decided at this stage, for which a full dress trial is necessary and such a definitive finding can be given only after appraisal of the evidence. Consequently, question No. i, framed in the order of 30.07.2020, is already answered in the same order and the reply to question No. ii, in view of the above discussion is also answered accordingly; that stay order / ad-interim injunction cannot be extended to the dishonoured cheques. Consequently, interim orders passed earlier, which were continuing till date, now stand vacated / recalled. To this extent, Review Application is granted. It is clarified that any observation made in this order is of tentative nature and will not influence trial of tie suit.
20. Office will now fix this cause as per Roster, because it is not a part heard matter anymore.