SHAHID BILAL HASSAN, J. Succinctly, the present appellant instituted a suit under Order XXXVII, Rules 1 & 2, Code of Civil Procedure, 1908 for recovery of Rs.3,000,000/- against the respondent on the basis of cheque No.2305081 pertaining to Habib Bank Limited, Adda Pasrurian, Sialkot, purportedly issued by the present respondent with the assertion that the above said cheque was issued in lieu of payment pending towards the respondent/defendant, which was, on presentation, dishonoured due to insufficient funds. The respondent/ defendant leave to appear and defend, which was accepted on filed application for 01.07.2019 and the respondent contested the suit by filing written statement. Divergence in pleadings of the parties was summed up into issues, formulated by the learned trial Court.
ISSUES:
1. Whether the defendant issued a cheque to the plaintiff for repayment of loan. When cheque No.2305081 presented for encashment on the given date that bounced? OPP
2. Whether the defendant did not pay the amount even on the demand of the plaintiff after dishonor of the cheque? OPP
3. Whether the plaintiff and his father stole two cheques from the vehicle of the defendant regarding which private complaint is pending in the court of Magistrate? OPD
4. Whether the plaintiff has misused those stolen cheques through this suit? OPD
5. Whether the handwriting of the cheque is found to be not of defendant, as per report of PFSA Lahore, in criminal case investigation? OPD
6. Whether the plaintiff has concealed real facts and not come into the court with clean hands?
OPD
7. Relief.
The appellant produced oral as well as documentary evidence in support of his stance and in order to rebut the same, the respondent appeared as D.W. and produced documentary evidence, as well. On conclusion of trial, the learned trial Court vide impugned judgment and decree dated 13.01.2020 dismissed suit of the appellant; hence, the instant appeal.
During pendency of the instant appeal, the appellant filed C.M.No.1 of 2020, C.M.No.1 of 2024, C.M.No.3 of 2024 for production of additional evidence, contending the same to be helpful for just decision of the case.
2. Heard.
3. First of all, I would like to unleash my hands on the miscellaneous applications filed for the purpose of production of additional evidence i.e. C.M.No.1 of 2020, C.M.No.1 of 2024, C.M.No.3 of 2024.
In this regard, it is observed that the documents sought to be produced have not been relied upon while presenting the plaint as per mandate of Rule 14 of Order VII, Code of Civil Procedure, 1908, which provides:- 'Production of document on which plaintiff sues. (1) Where a plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint.
(2) List of other document. Where he relies on any other documents whether in his possession or power or not as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the plaint and shall also produce such documents as are in his possession or power.'
Moreover, the documents in question have no direct nexus with the matter in hand. Furthermore, a bare perusal of the provisions contained in Rule 27 of the Order XLI, Code of Civil Procedure, 1908 would reveal that the appellate Court must be conscious while allowing a party to adduce additional evidence. A party which intends to bring additional evidence on record must convince the Court with proof that such party could not lead the evidence at proper stage due to some plausible reasons and sufficient cause. In the instant case, it is evident that at trial the appellant did not produce the said evidence and closed his evidence. It is a well settled law that the party who had the opportunity to produce evidence in the trial Court but did not avail of the opportunity should not be allowed to improve its case by producing evidence at the appellate stage, as under the above mentioned provisions, a party cannot be allowed to fill up the lacunas at appellate stage, who has been unsuccessful in the trial Court. In this regard, guidance has been sought from judgments reported as Shaikh Javed and others v. Shaikh Hassan Ali (2010 SCMR 166), Kodal Khan v. Sufaid Gul and others (PLD 1965 W.P. Peshawar 259) and Allahditta v. Ghulam Rasool (PLD 1975 Lahore 138).
4. In the light of the above, while placing reliance on the judgments supra as well as judgments reported as Messrs BATA SHOE COMPANY and 2 others v. MUHAMMAD ARSHAD SIDDIQUI and another (1991 SCMR 1775), Rana Abdul Aleem Khan v. Idara National Industrial Co-operative Finance Corporation Defunct through Chairman Punjab Cooperative for Liquidation, Lahore and another (2016 SCMR 2067) and Muhammad Siddique v. Gul Nawaz and others (2021 SCMR 1480), the applications ibid for production of additional evidence are turned down.
5. Coming to the main case, it is observed that the appellant could not plead and prove that for which consideration the disputed cheque was issued to him by the respondent and the appellant himself did not appear in the witness box rather produced his attorney as P.W.2 who deposed that the cheque in question was issued in respect of mutation No.9532, which relates to transfer of land measuring 2-kanals 16-marlas 3 1/2 sarsahi, which mutation was executed by Muhammad Azhar and Abdul Majid (appellant) in favour of Anjum Akhtar (the respondent) and the sale price of the said land was incorporated as Rs.900,000/-; meaning thereby the evidence of the appellant does not support the stance of the appellant rather negates the same. The other witness of the appellant is formal one. The appellant could not produce any other independent witness so as to support his stance. Moreover, the report of PFSA (Ex.D2) supports the stance of the respondent which declares that the handwriting on the cheque in question is not of the respondent. Though the report of the fingerprint expert cannot be relied upon only for the purpose of determining rights of the parties, but here in this case the other evidence of the appellant is not strong and confidence inspiring, so the weightage can be extended to the said report, which is corroboratory in nature.
Furthermore, it is a settled principle of law that a party has to stand on his own legs and any shortcomings in the evidence of the rival party cannot extend any benefit to such party, so the arguments that the respondent has not proved his stance are repelled.
6. In this view of the matter, there is no misreading and non-reading of evidence on record. The learned trial Court has construed law on the subject in an apt and judicious manner and there appears no illegality in the impugned judgment and decree warranting interference by this Court in exercise of appellate jurisdiction.
7. For the foregoing reasons, the appeal in hand having no force and substance stands dismissed.
No order as to the costs.