MUHAMMAD IJAZ KHAN, J. - Through the instant Regular First Appeal, the appellant has challenged the judgment and decree of the learned Additional District Judge-Katlang, Mardan dated 30.07.2019, whereby the suit filed by the respondent/plaintiff was decreed.
2. Precisely, the facts leading to the filing of the instant appeal are that the respondent/plaintiff filed a suit under Order XXXVII CPC for recovery of Rs.10,000,000/- (one crore) on the basis of pronote dated 19.04.2013. The present appellant then defendant was summoned who appeared and submitted an application for the grant of leave to defend, which application was allowed by the learned trial Court vide order dated 21.01.2019. Thereafter, he contested the suit by filing his written statements and from the divergent pleadings of the parties, the learned trial Court framed issues, whereafter, both the parties adduced their respective evidence. After recording of evidence and hearing of learned counsel for the parties, the learned trial Court decreed the suit of the respondent/plaintiff vide impugned judgment and decree dated 30.07.2019 which judgment and decree of the learned trial Court has now been challenged by the appellant/defendant through the instant Regular First Appeal before this Court.
3. Arguments heard and record perused.
4. The very contents of the plaint would show that it is the case of respondent/plaintiff that he has directly handed over Rs.10,000,000/- (one crore) to the appellant/defendant in presence of the marginal witnesses and in this regard, a pronote dated 19.04.2013 has been executed and when he demanded the said amount from him, he refused to return the same, which necessitated the filing of the instant suit, however, when he appeared in the witness box as PW-2, he totally set a new case to the effect that in fact he has paid the said Rs.10,000,000/- (one crore) to different persons on the direction of the appellant/defendant, which fact has not been pleaded in the plaint rather stated for the first time in his Court statement, therefore, it is an evidence which is beyond pleadings and as such the same could neither be appreciated nor considered in favour of the respondent/plaintiff. In case[1] the Hon'ble Supreme Court has held that needless to observe that a party can only prove the case pleaded by it. The rule of secundum allegata et probates, not only excludes the element of surprise, but also precludes the party from proving what has not been alleged or pleaded. This Court, in the cases of "Government of West Pakistan (Now Punjab) through Collector, Bahawalpur v. Hail Muhammad" (PLD 1976 SC 469), "Messrs Choudhary Brothers Ltd., Sialkot v. The Jaranwala Central Co-operative Bank Ltd., Jaranwala" (1968 SCMR 804), "Binyameen and 3 others v. Chaudhry Hakim and another" (1996 SCMR 336) and "Major (Retd.) Barkat All and others v. Qaim Din and others" (2006 SCMR 562), held that no party can be allowed to lead evidence on a fact which has not been specifically pleaded nor can any evidence be looked into which is outside the scope of pleadings. Similarly, in case[2] the Apex Court has held that when the plaintiff has led evidence beyond the pleadings, therefore, the case law cited by the learned counsel for the appellants reported as "Muhammad Nawaz alias Nawaza and others v.
Member Judicial Board of Revenue and others" (2014 SCMR 914), "Sardar Muhammad Naseem Khan v. Returning Officer, PP-12 and others" (2015 SCMR 1698), "Binyameen and 3 others v.
Chaudhry Hakim and another" (1996 SCMR 336), "Province of Punjab through Chief Secretary and 5 others v. Malik Ibrahim and Sons and another" (2000 SCMR 1172) and "Sultan Muhammad and another v. Muhammad Qasim and others" (2010 SCMR 1630) supports the version of the appellants that the plaintiff-respondent cannot lead evidence beyond the pleadings and further the evidence led even negates the version of the plaintiff-respondent pleaded through the plaint.
The Hon'ble Supreme Court in case[3] has held that according to Order VI, Rule 1 C.P.C, the term "pleadings" include the plaint and the written statement, whereas Order VI, Rule 2, C.P.C accentuates, that every pleading shall contain a statement in concise form of the material facts on which the party pleading relies for his claim or defence. It is also a well settled exposition of law that no party can lead evidence beyond the pleadings.
5. The contents of the plaint as well as contents of the pronote would also show that it is the case of respondent/plaintiff that he has paid the said huge amount of Rs.10,000,000/- (one crore) in presence of two marginal witnesses namely Nazir Muhammad who appeared as PW-3 and Aqil Khan as PW-4, however, when the said witnesses appeared in the witness box both of them have out rightly denied the payment of the said amount in their presence, therefore, though if the respondent has proved the execution of the pronote and has also produced it in Court, but he has miserably failed to prove the very contents of the same. It may be clarified that proof of execution of a document and proof of contents of a document are two distinct phenomena, and beneficiary of the document has to prove both of them. The consistent judicial position which has developed so far is that the production of a document in Court and proof of its contents are two distinct and independent legal concepts. Mere production or exhibition of a document, even if done without objection, then the same does not by itself render the document admissible or confer upon it any probative value. For a document to be treated as valid evidence, its contents must be proved in accordance with Article 78 of the Qanun-e-Shahadat Order, 1984. In case[4] the Lahore High Court has held that it is well-coalesced and deeply-embedded position of law that production of documents and their admissibility as well as the proof and probative value carried by such documents are entirely two different things and should never be used or construed interchangeably. For proving veracity of a document, the person who authored it must depose before the court in support of the contents, otherwise such document can merely be taken into consideration for the purpose of showing that such a document was issued but whether the contents of the same are correet or not, such facts cannot go into the evidence unless the author of the document deposes before the court and faces cross-examination. Once a document is produced as a piece of evidence, it has to undergo the crucible of objective scrutiny in terms of Article 78 of the Qanun-e-Shahadat Order, 1984 ("QSO"). Mere production of a document neither lends any credence nor confers any probative value to it. Similarly, in case[5] the Lahore High Court has held that the production of document on record and its proof are two independent aspects and the latter aspect is vital, which makes a fact to be proved.
6. As far as the legal aspect of this case is concerned and has also pressed hard by the learned counsel for the respondent/plaintiff that the instant suit has been filed on the basis of a pronote which has statutory presumption of its correction and execution nevertheless there is no cavil with the aforesaid proposition that under section 118 of the Negotiable Instrument Act, a negotiable instrument including a pronote has a presumption, however, such presumption is always rebuttal and if the defendant succeeds to rebut the execution of a negotiable instrument or if he succeeded that there exist no consideration for the issuance of the same then no presumption could be attached to such negotiable instrument. In the instant case, as stated hereinabove that it was the case of respondent/plaintiff that he has directly paid the huge amount of Rs.10,000,000/- (one crore) to the appellant/plaintiff, however, when he appeared in the Court he in his examination in chief set a totally new case to the effect that he has paid the said huge amount to different persons on the direction of appellant/ defendant, however, he has neither named those persons nor he has given any specific figure of amount which he had paid to those individuals, therefore, the respondent/plaintiff has not been able to prove the consideration for issuance of the said pronote. In a case[6] the Hon'ble Apex Court has held that it is trite law that the burden to rebut this presumption lies upon the party arguing that the negotiable instrument has not been made/drawn for consideration. Reference is made to the case of "Haji Karim vs. Zikar Abdullah"
(1973 SCMR 100 at page 101). However, this raises the question: how can this presumption be rebutted? The answer has been provided by the Indian Supreme Court in the case of "Bharat Barrel and Drum Manufacturing Company vs. Amin Chand Pavrelar ([1999] 1 SCR 704).
"13. ... The defendant can prove the non-existence of consideration by raising a probable defence... The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relics... The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances, upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would under the circumstances of the case shall act upon the plea that it did not exist."
7. In view of the above, this appeal is allowed, the impugned judgment and decree of learned Additional District Judge-Katlang, Mardan dated 30.07.2019 is set aside and consequently, the suit filed by the respondent/plaintiff is dismissed.
1. "Muhammad Ghaffar (deceased) through LRs and others vs. Arif Muhammad' reported as 2023 SCMR 344
2. "Muhammad Aslam and others vs. Muhammad Anwar' reported as 2023 SCMR 1371
3. "Muhammad Naeem Khan another vs. Muqadas Khan (decd) through L.Rs. and another reported as PLD 2022 Supreme Court 99
4. "State Life Insurance Corporation of Pakistan (SLIC) through duly authorized Officer/Attorney vs. Mst. Bibi Reema" reported as 2023 CLD 912fLahere(Multan Bench)1
5. "Muhammad Younas and another vs. Ghazanfar Abbas and 12 others" reported as 2017 YLR 2229 [Lahore].
6. "Rab Nawaz Khan vs. Javed Khan Swett reported as 2021 SCMR 1890