This appeal is directed against the judgment and decree dated 13-4-1986 passed by the learned IInd Additional District & Sessions Judge, Karachi South, in Suit No. 139 of 1982 decreeing the respondent's suit for a sum of Rs.22,000 being the amount of 4 cheques.
2. The brief facts leading to the filing of the above appeal are that the respondent filed the aforesaid suit for the recovery of Rs.22,000 on the basis of averment that he was doing business of Commission and Brokerage in the name of Jaffar & Abdul Ghaffar and that the appellant- defendant had purchased rice from the plaintiff. It was also averred that the appellant-defendant had to pay a sum of Rs.22,000 in respect of which following 4 cheques were given:- "(1) Cheque No.126494, dated 5-5-1982
(2) Cheque No.126496. dated 5-6-1982
(3) Cheque No.120497. dated 5-7-1982
(4) Cheque No.126498, dated 5-8-1982 Rs.22,000 " The above cheques were dishonoured and, therefore, the plaintiff had led the above suit.
The above suit was resisted by the present appellant/ defendant and inter alia it was pleaded that the above cheques were obtained at the police station under duress, coercion and. Therefore, were not enforceable and it was also pleaded that the cheques were given to Jaffar and Abdul Ghaffar, which was a firm but as it was not registered, the suit was liable to be dismissed. On the basis of the pleadings of the parties, the learned trial Court framed the following 6 issues:- "(1). Whether the defendant had issued the 4 cheques amounting to Rs.22,000 as follows: (1)Cheque No.126494 dt. 5-5-1982for Rs.5,000 (2)Cheque No.126496 dt. 5-6-1982for Rs.5,000 (3)Cheque No.126497 dt. 5-7-1982for Rs.5,000 (4)Cheque No.126498 dt. 5-8-1982for Rs.7,000 Rs.22,000 (2)Whether the defendant is liable to pay to the plaintiff R 6.22,000 ?
(3)Whether the defendant himself made; complaint to the police as per Anxs. A & B with the counter- affidavit?
(4)Whether the plaintiff served a notice upon the defendant for the recovery of Rs.22,000 but the defendant did not reply?
(5)Whether defendant's allegation regarding the threatening attitude of Police has been reported to the higher authorities, if so what effect?
(6).What should the decree be ?"
3. In support of the suit claim the respondent examined himself and the appellant himself. The learned trial Court after hearing the parties, decreed the above suit. The appellant being aggrieved by the above judgment and decree has filed the present appeal.
4. In support of the above appeal. Mr. Mustafa Lakhani, learned counsel for the appellant, has contended as follows:-
(i) That the cheques were not enforceable as they were obtained under duress and coercion at the police station.
(ii) In any case, the suit was hit by Section 69 of the Partnership Act.
On the other hand Mr. Khawaja Mahfoozur Rehman, learned counsel for the respondent, has submitted as follows:-
(i) That the plea that the cheques were obtained under duress and coercion was afterthought, and factually they were not given at the police station.
(ii)That the suit was competent as the respondent was entitled to file the suit in his individual capacity.
5. Adverting to the first submission of Mr. Mustafa Lakhani, learned counsel for the appellant that the cheques were obtained under duress coercion at the police station, it will suffice to observe that there is no reliable material produced by the appellant in support of the above allegation. On the contrary, the conduct of the appellant not to serve any notice after the issuance of the above cheques after the parties were called by the police indicates that the cheques were not given at the police station. Furthermore in his cross-examination, the appellant had admitted the fact that the cheques were not given at the police station.
6. As regards the second submission that the suit was hit by Section 69 of the Partnership Act, it may be observed that in the plaint, the respondent had not averred that the above business transaction was entered into between the appellant and the partnership firm. This plea was taken by the appellant in the written statement. In the cross-examination, the respondent has stated that "in the company of the present suit we are two partners on 50% each basis. Our firm is registered. I have got the registration certificate but I have not brought today." On the following date, the respondent produced photostat copies of two registration certificates of firms as Exs.l/12 and 1/13 but the above registration certificates do not indicate any firm by the Name of Jaffar and Abdul Ghaffar nor the above registration certificates indicate that Jaffar and Abdul Ghaffar were partners in either of the above two firms in respect of which the above certificates were produced namely, Jaffar Company and Pak Company. However, Mr. Khawaja Mahfoozur Rehman, learned counsel for the respondent, has vehemently contended that the respondent could carry out business in usual with Abdul Ghaffar and could file the suit in their individual capacity. There seems to be no such plea taken in the plaint nor this was stated by the respondent in his testimony before the Court. Mr. Khawaja Mahfoozur Rehman has also referred to the following two cases:- (1).Messrs, United Cotton Factory, Hyderabad v. Ahmed Khan, reported in PLD 1960 (W.P.) Kar. 774.
(2).Usman v. Haji Omer Haji Ayub and Haji Razzak, reported in PLD 1966 S.C. 328.
7. The above cases have no application to the present case as admittedly the suit was for the recovery of the amount in respect of business transaction. However, I may observe that since the cheques were given in the names of two persons namely, Jaffar and Abdul Ghaffar without any reference to any firm, the question arises whether the above two persons could have filed a suit on the cheques and not on the original consideration. If the answer of the above question is in affirmative further question which requires consideration is as to whether one of the above two persons could have filed the suit.
8. I would, therefore, remand the case to the learned trial -Court with the directions to decide the additional issues: -
(1) Whether the above 4 cheques were given by the appellant/defendant in favour of thetwo individuals named therein? And
(2) Whether one of the two above named individuals could file the suit on the cheques without reference to the original business transaction?
9. The parties will have right to lead further evidence on the above issues.
The appeal stands dispose of in the above terms with no order as to costs.
H.B.T./H-156/K