This first appeal assails judgment and decree dated 14.7.2003 passed by the learned Additional District Judge, Daska, District Sialkot, whereby suit for recovery of Rs, 1,75,000/-, has been decreed..
2. Precisely, facts relevant for the disposal of the instant appeal are that the respondent filed a suit for recovery of Rs, 1,75,000/-, under Order XXXVII Rule 2 C.P.C. on the basis of a cheque allegedly issued by the appellant. The respondent pleaded in his plaint that the appellant borrowed a sum of Rs, 1,75,000/- on 8.9.2000 from him with a promise to return it on or before 20.10.2000 and executed a post dated Cheque No, 996006 drawn on National Bank of Pakistan, Bhallowali Branch, Tehsil Daska, District Sialkot, out of his Current Account No, 127-S. The respondent also pleaded that though cheque was given to him by the appellant on 8.9.2000 but it was dated and was to be presented to the Bank on 20.10.2000, in case, the appellant did not make the payment of the cheque before that date. According to the respondent, this cheque was presented on 24.10.2000 but was returned by the Bank with the remarks "refer to drawer" which necessitated filing of suit in hand.
3. The appellant being defendant, in the suit filed an application under Order XXXVII Rule 2(2) CPC before the learned Additional District Judge/trial Court seeking leave to appear and defend the suit which was allowed on 18.9.2001 and the appellant filed a written statement, controverted the assertions of the respondent, denying receipt of loan and issuance of cheque in favour of the respondent. Controversial pleadings of the parties, necessitated framing of issues and recording of evidence. The learned Additional District Judge, Daska, who was seized of the suit, after doing the needful and after due appraisal of evidence on the file vide his judgment and decree dated 14.7.2003, decreed the suit of the 'respondent with costs.
4. The appellant aggrieved of the decision of the trial Court, filed this first appeal, for annulment of the judgment and decree, impugned. This appeal, was admitted to regular hearing and after notice to the respondent, it has now been fixed for `Pakka' hearing.
5. Learned counsel for the appellant submits that there is no proof on the file that cheque in question was issued by the appellant'against a sum received by him, as loan, in terms of assertions of the respondent. She further submits that no notice on dishonour of the cheque, according to Section 30 of the Negotiable Instruments Act, 1881, was issued to the appellant, without which, suit of the respondent was not maintainable at law. In this behalf; she besides relying on Section 30 of the AU, 1881, referred to the case of Bahadur Chand Prabh Dial vs. Gulab Rai-Nanak Chand and others (AIR 1929 Lahore 577). It is also a submission of the appellant that payment of loan by the respondent, without receipt is unbelievable and as such, cheque in question should have been' presumed to be without consideration. She further contends that there is no explanation as to why cheque dated 20.10.2000 was presented to the Bank on 24.4.2000, which makes the entire narration of the plaint as doubtful. Conversely, the learned counsel for the respondent refuted the submissions of the appellant, supported the judgment and decree of the trial Court and urged that the appellant neither in his written statement nor in his deposition as DW.1 has denied execution of the cheque and thus, it is irrelevant to say that cheque was not issued by him.. Learned counsel for the respondent also contends that assertion of non-service of notice in terms of Section 30 of the Negotiable Instruments Act, 1881, has not been pleaded in the written statement by the appellant which means that he admitted service of notice or at the least waived objections, thereto: According to the submissions of the learned counsel for the respondent, learned trial Judge in Para No, 11 of his judgment has very minutely discussed the evidence on the file, which is not claimed to the contrary to record, as such, no indulgence may be shown in favour of the appellant.
6. I have anxiously considered the arguments of the learned counsel for the parties and have examined the record, appended herewith. The appellant has not denied before the trial Court or during the course of arguments on his appeal that cheque in question was not from his chequebook or it does not relate to his account. Issuance/execution/signing of cheque by the appellant is not specifically denied in the written statement or in the grounds of appeal before this Court. Circumstances, in which the cheque in question came to the hands of the respondent, have not been explained at all. If this cheque was lost, as asserted during the course of arguments, no action in this behalf was taken by the appellant by initiation of any kind of proceedings or at least, by way of information to the Bank concerned. The appellant did not stop payment of the cheque.
Written statement is vague and does not contain a word that cheque was not issued by the appellant and in these circumstances, I am not ready to accept that he did not issue/sign/executed this cheque in favour of the respondent. Once it flows from the file that cheque was issued in favour of the respondent, it was for the appellant to prove that he did not receive any consideration, thereunder, but he failed in this behalf, as well. The respondent was not needed, under law, during the proceedings under Order XXXVtI Rules 2 CPC to prove payment of loan in the stricto senso. My view gets support from the judgments on similar facts involving same point of law, given in the cases of United Bank Ltd. vs. Mrs. Bilquees Begum and 3 others (1988 CLC 1613) and Khaslid Mukhtar vs. Mrs. Sadiqa Tasneem (1996 CLC 741). Presentation. of cheque for encashment with a delay of only four days, is usual, as it could have been presented within six months, as per Bank rules and a holder of cheque can Bank and present it within this period, at his convenience.
7. No doubt notice under Section 30 of the Negotiable Instruments Act, 1881, J was to be issued specifying refusal of the encashment to it, but the appellant who had two opportunities' of mentioning/complaining non-compliance by the respondent, of Section 30 of the Act, once in his application seeking leave to appear and defend the suit and then in his written statement but he did not mention any thing, regarding this notice. The respondent was not required to prove issuance and service of this notice on the appellant, in absence of any assertion touching notice in his written statement, likewise, the trial Court was not obliged to give any decision thereon. The appellant, no doubt, has half-heartedly raised. an objection in memorandum of appeal before this Court but cannot be helped, in absence of any issue and evidence to this effect on the file.
Issuance or non-issuance of this notice is a matter of fact which should have been asserted in the pleadings and in absence of it, presumption is that this obligation was discharge by the respondent.
8. Besides what has been stated above, I have gone through the evidence and the judgment of the learned trial Judge, no misreading of any kind is proved. Judgment of the trial Court is strictly in consonance with the record and is accordingly affirmed. This appeal has no merit and is accordingly dismissed with no order as to costs.