SHAHID BILAL HASSAN-J: Succinctly, the appellant instituted a suit for recovery of Rs.5,000,000/- on the basis of cheque under Order XXXVII, Rules 1 & 2, Code of Civil Procedure, 1908 against the respondents. The respondents No.1 to 3 are minors and firstly the suit was instituted against them through Sheikh Muhammad Zafar, real uncle; however, later on, on the application of respondent No.4 amended plaint was submitted and suit against the minors was filed through Mst. Samrana Nawaz, real mother of the minors. The appellant contended that he is real brother of Sheikh Pervaiz Nawaz, who had taken loan from several persons as well as banks. Pervaiz Nawaz had to make repayment of loans to banks and other persons and he asked the appellant that he was going to sell his property and was badly in need of Rs.5,000,000/- as loan; that the appellant in presence of witnesses on 27.09.2007 gave Rs.5,000,000/- him loan and Pervaiz Nawaz issued a cheque No.21951889, MCB Limited, Ayub Chowk Jhang, in favour of the appellant; that on 28.02.2008, Pervaiz Nawaz died and the legal heirs of Pervaiz Nawaz made an assurance to the appellant that the cheque will be honoured on the fixed date but the same was dishonoured when presented in the bank on the fixed date; that the respondents are legal heirs of Pervaiz Nawaz deceased and they are legally and morally bound for the payment of borrowed amount of the dishonoured cheque, for which they were repeatedly asked but they refused; hence, the suit. After seeking leave to appear and defend the suit, the suit was contested by the respondents, who raised preliminary as well as legal and factual objections. Out of the divergent pleadings of the parties, the learned trial Court framed issues and evidence of the parties in pro and contra was recorded. On conclusion of trial, the learned trial Court vide impugned judgment and decree dated 22.05.2015 dismissed suit of the appellant; hence, the instant regular first appeal.
2. Heard.
3. Purported lender and borrower in this case are real brothers and the present respondents are legal heirs of the borrower of the disputed amount namely Pervaiz Nawaz. Faced with this proposition and scenario, the relevant sections in this regard are 29 and 29-A of the Negotiable Instruments Act, 1881, which provide:- '29. Liability of legal representative signing. A legal representative of a deceased person who signs his name to a promissory note, bill of exchange or cheque is liable personally thereon unless he expressly limits his liability to the extent of the assets received by him as such.
29-A. Signature essential to liability. No person is liable as maker, drawer, endorser or acceptor of a promissory note, bill of exchange or cheque who has not signed it as such: Provided that where a person signs any such instrument in a trade or assumed name he is liable thereon as if he had signed it in his own name.' (Underline for emphasis)
When the above provisions of law are read together and considered, it can safely be inferred that a person (in this case legal heirs) is liable only to pay the disputed amount of a negotiable instrument when he signs the same and not otherwise. In this case, no such occasion is apparent on record, rather it is an admitted fact that the respondents No.1 to 3 are minors and respondent No.4 was living abroad at the relevant time in order to see her parents. Therefore, the respondents are not liable to pay the disputed amount in the light of the above provision of law and the suit against them is not maintainable but this fact has not been considered and was perhaps overlooked by the learned trial Court.
4. Keeping aside the above observation, even then the appellant has miserably failed to prove his stance because he could not plead the names of the witnesses in whose presence the disputed transaction took place and it is a settled principle of law that a party cannot go beyond the pleadings and if anything is produced or brought on record beyond pleadings the same cannot be considered being inadmissible. In this regard for ready reference the paragraph No.2 of the plaint is relevant, which is reproduced as under:- In this view of the matter, the evidence produced by the appellant except his own deposition cannot be relied upon; in this regard reliance is placed on Sh. Fateh Muhammad v. Muhammad Adil and others (PLD 2008 SC 82) and Hyder Ali Bhimji v. Additional District Judge Karachi South and another (PLD 2012 SC 279). Even the same is not worthy of credence, because it is an admitted fact on record that after the demise of Pervaiz Nawaz, all the account books, cheque books, etc. and other things belonging to the business of Pervaiz Nawaz were taken over by the appellant and Sheikh Muhammad Zafar and the appellant has taken a stance that he entered the disputed amount in accounts book but he did not produce the same in evidence. Moreover, it has emerged on record during evidence that one Ikhlaq Hussain Baluch was employee of Pervaiz Nawaz and after his demise he is serving as Munshi of the appellant but the said Ikhlaq Hussain Baluch, who was best witness in circumstances of the instant case, as he used to keep the account books of Pervaiz Nawaz, was not produced, so the adverse presumption as per Article 129(g), Qanun-e-Shahadat Order, 1984 arises against the appellant that had he been produced in the witness box, he would not have supported the stance of the appellant.
5. In addition to the above, as observed above, the business of deceased Pervaiz Nawaz including the account books, etc. was taken over by the appellant and Sheikh Muhammad Zafar jointly but the said Muhammad Zafar, while submitting application for leave to appear and defend being guardian ad litem of the minors specifically and in a categorical manner denied the averments of the plaint and stance of the appellant. Had there been any such transaction and entry in accounts book of joint venture, he (Muhammad Zafar) would have consented the stance of the appellant but the position is not as such.
6. Moreover, the appellant has neither produced the memo slip of the bank nor any bank official in support of his stance and only cheque in dispute has been exhibited as Ex.P1, which means that the cheque in dispute was not presented in the Bank.
Besides, the learned trial Court has keenly and cautiously compared the ink of signatures and other writing on the disputed cheque Ex.P1 and overleaf signatures as per mandate of Article 84 of the Qanun-e-Shahadat Order, 1984 and has rightly concluded that the ink of signatures differs from the ink of other writing, which strengthen the doubt that the disputed cheque was managed by the appellant as after death of Pervaiz Nawaz he took over all the accounts books, cheque books and other things of the business of deceased because the respondents No.1 to 3 were minors and respondent No.4 was living abroad and even the respondents are foreign nationals.
7. The compendium of the discussion above is that the learned trial Court has appreciated evidence on record in a true perspective, which otherwise was not necessary if the provisions of sections 29 and 29-A of the Negotiable Instruments Act, 1881 have been kept in mind and adhered to by the learned trial Court, and has reached to a just conclusion that the appellant has failed to prove his case by leading unimpeachable, trustworthy and confidence inspiring evidence.
Resultantly, the appeal in hand comes to naught and the same is hereby dismissed with costs throughout.