CH. MUHAMMAD IQBAL, J. Through this regular first appeal, the appellant has challenged the validity of the judgment and decree dated 11.12.2018 passed by the learned Additional District Judge, Kamalia who decreed the suit under Order XXXVII, C.P.C filed by the respondent/plaintiff against the appellant/defendant.
2. Brief facts of the case are that the respondent/plaintiff filed a suit under Order XXXVII, C.P.C for recovery of Rs.30 lac on the basis of dishonoured cheque against the appellant/ defendant and contended that he had good relations with the appellant/defendant. The appellant/defendant came to the house of the respondent/plaintiff on 07.08.2016 and requested him to lend her Rs.30 lac for her personal needs. At that time witnesses Muhammad Nawaz and Muhammad Yar were also present there. The respondent/plaintiff gave the said amount to the appellant/defendant and in return, the appellant/defendant issued a cheque of the same amount in his favour. Later on, on presentation of the cheque before the concerned bank it was dishonoured. The appellant/defendant filed contesting written statement and contended that the suit was filed by the respondent/plaintiff to harass the appellant/defendant. She did not know the respondent/plaintiff, neither received loan nor issued any cheque. The suit has been filed in collusion with Sajjad Hussain. The appellant/defendant obtained a computer course at Vocational Training Institute, Chak No.708/G.B Tehsil Kamalia District Toba Tek Singh wherein the bank account of the appellant/defendant was got opened as each student was granted stipend of Rs.3000/- out of which students were handed over Rs.500/- whereas Rs.2500/- were retained by the Institute. In the meanwhile, the cheques of the cheque book of the appellant/defendant were misplaced by the staff or the teacher. The appellant/defendant further contended that Sajjad Hussain was interested in marrying the appellant/defendant which proposal was rejected upon which he in that grudge procured the cheque of the appellant/defendant and instigated the respondent/plaintiff to file suit against the appellant/defendant. Out of the divergent pleadings of the parties, the trial Court framed issues, recorded pro and contra evidence of the parties and finally decreed the suit vide judgment and decree dated 11.12.2018. Hence, this appeal.
3. Arguments heard. Record perused.
4. The controversy involved in this case revolves around issue No.1 whici is reproduced as under: "Whether the plaintiff is entitled to get a decree for the recovery of Rs.30,00,000/- from the defendant on the basis of cheque No.105000433 dated 16.02.2017 as prayed for? OPP"
To prove this issue and to dissipate the onus, Muhammad Umar/respondent/plaintiff (P.W.1) deposed that he is Lumberdar; that defendant is employee in a bank in Lahore; that he has relations with the family of the defendant for the last 20 years; that on 17.08.2016 Sunday the defendant along with Muzammal Hussain came to his house at Chak No.344/G.B; that at that time Muhammad Nawaz son of Dara and Muhammad Yar son of Allah Ditta were present there and requested for loan of Rs.30 lac; that he demanded . cheque from defendant regarding which she agreed; that, he paid Rs.30 lac and the defendant issued cheque (Exh.P.1); that on 16.02.2017, when he presented the cheque in Bank Alfalah, official informed him regarding dishonouring of cheque; that on 26.02.2017, he went to the house of the defendant along with aforementioned witnesses and told her regarding dishonouring of cheque. During cross-examination, he deposed that: Muhammad Nawaz (P.W.2) deposed that on 07.08.2016 Umar Hayat whose correct name is Muhammad Umar and Muhammad Yar were sitting in the baithak and at that time, Sadia Parveen and Muzammal Hussain came there; that Sadia requested to give Rs.30 lac as loan; that Muhammad Umar stated that it is a huge amount; that he gave Rs.30 lac to her and she issued cheque of said amount in his favour; the cheque was later on dishonoured. During cross- examination, he deposed that: Muhammad Yar (P.W.3) deposed that on 07.08.2016 he was sitting in bathiak with Muhammad Umar and Nawaz; that Sadia Parveen came there with her brother Muzammil Hussain and demanded Rs.30 lac; that Umar went to his room and brought amount of Rs.30 lac and gave it to Sadia Parveen; that Sadia gave cheque of Rs.30 lac which, was dishonoured. During cross- examination, he deposed that Umar is owner of only 09 Marla land in the village.
5. Conversely, Hafiz Muhammad Sabir (D.W.1) deposed that he is posted as Computer Operator in Vocational Training Institute Chak No.708/G.B; that Sadia Parveen got admission as per their record in January, 2012 till December, 2012. He produced the copy of admission form (Mark-A), Zakat Fund transfer (Mark-B to Mark-D); that as per their record, the defendant received Rs.500/- Zakat Fund every month; for this. purpose institution issued a cheque book from Bank of Punjab in her favour; that the defendant on the basis of cheque book, received scholarship from the bank w.e.f. January 2012 to December, 2012. Sadia Parveen (D.W.2) herself deposed that she got admission in 2012 in the Vocational Training Institute; that the routine of the institute was that Rs.3000/- were received from TEVTA out of which Rs.2500/- were taken by institute and only Rs.500/- were given to the student; that institute after receiving Rs.200/- from every student, got opened an account in the Bank of Punjab; that bank issued cheque book in her favour; that when the amount received by the institute, she went to her teacher, who used to get encashed the cheque; that due to some negligence of staff or teacher, her cheques were went in the hands of Sajjad Hussain; that Sajjad Hussain is her relative; that Sajjad wanted to marry her which proposal was refused by her parents; that Sajjad could not file suit as there were other litigation pending between them; that she. filed application for stealing of cheque against Sajjad and Umar and during inquiry they admitted stealing of cheque; that police declared them guilty of stealing the cheque; that due to the pendency of this suit, criminal case was not further proceeded; that she never met the plaintiff, neither received amount nor issued cheque; that the plaintiff has no financial position of giving such huge amount. During cross-examination she deposed that it is correct that they used to issue cheque in favour of their teachers; that she had filed suit (Exh.D.1) for jactitation of marriage against Sajjad which is pending in the court of Judge Family Court. Muzammil Hussain (D.W.3) also supported the stance of the appellant/defendant.
6. Perusal of the evidence as well as record shows that the respondent/plaintiff has failed to prove the assertion of giving of loan of a huge amount of Rs.30 lac to the appellant/defendant. In the plaint, the respondent/plaintiff has mentioned that on 07.08.2016 the appellant/defendant came to his house and request to lend Rs.30 lac whereas while appearing as P.W.1, he introduced new stance and stated that the appellant/defendant came to his house along with her brother namely, Muzammil Hussain. The witnesses of the respondent/plaintiff appearing as P.W.2 and P.W.3 also deposed about the newly added stance of the respondent/plaintiff. P.W.3 further added in the aforesaid stance that the plaintiff went to his room inside the house and brought the amount.
These depositions made by P.W.1 to P.W.3 in their statements-in-chief are not mentioned in the plaint and it is settled law that the evidence out of pleading could not be considered or discussed and same should be ignored while deciding the lis.Reliance is placed on the cases titled as Zulfiqar and others v. Shahdat Khan (PLD 2007 SC 582), Muhammad Ghaffar (deceased) through LRs and others v. Arif Muhammad (2023 SCMR 344) and Hafiz Qari Abdul Fateh through L.Rs v. Ms. Urooj Fatima and others (2024 SCMR 1709).
7. Furthermore, this Court vide order dated 18.01.2022 directed both the parties were directed to appear along with statements of their bank accounts. The appellant/defendant produced her bank statement which shows her bank balance as zero whereas the respondent/plaintiff did not furnish any such details. It can thus be ptesumed that he had no such amount. The respondent/plaintiff also failed to prove his source of amount for giving such a huge amount as loan to the appellant/defendant.
8. Even otherwise, it is proved on record that the appellant/defendant was a student of the Vocational Training Institute where she got opened a bank account to receive the monthly stipend of Rs.3000/- from TEVTA out of which the institute used to take Rs.2500/- for which the officials used to take cheques from the students. The cheques of the appellant/defendant were misplaced by some official or teacher of the institute which went into the hands of the respondent/plaintiff and Sajjad Hussain, with whom litigation was already pending. Muzammil Hussain, real brother of the appellant/defendant, filed application against Muhammad Umar/respondent/plaintiff and Sajjad Hussain [relative of the appellant/plaintiff] for stealing of cheque. On the said application, S.H.O Kamalia submitted repot (Exh.D.3) against Sajjad Hussain etc.
9. The respondent/plaintiff failed to prove that he gave an amount of Rs.30,00,000/- to the appellant/defendant against which she issued a cheque of the same amount through any concrete, solid and trustworthy evidence as such the claim of the respondent/plaintiff cannot be granted. Reliance in this regard is placed on a recent pronouncement of the Hon'ble Supreme Court of Pakistan cited as Mehr Noor Muhammad v. Nazir Ahmad (PLD 2024 SC 45).
10. In view of above, it can conveniently be observed that the respondent/plaintiff miserably failed to prove the issue No.1 whereas the appellant/defendant successfully proved that the cheque in question was misused by the respondent/plaintiff in collusion of relative of the appellant/defendant but the trial Court by committing misreading and non-reading of the evidence decided issue No.1 in favour of the respondent/plaintiff and against the appellant/defendant as such these findings of the trial court are not sustainable in the eyes of law which are hereby reversed and this issue is decided against the respondent/plaintiff and in favour of the appellant/defendant. Reliance is placed on the case- titled as Nazim-ud-Din and others v.
Sheikh Zia-Ul-Qamar and others (2016 SCMR 24).
11. Resultantly, this appeal is allowed, the judgment and decree dated 11.12.2018 passed by the trial Court is set aside resultantly the suit for recovery filed by the respondent is dismissed. No order as to costs.