---O.XXXVII--Suit for recovery--Issuance of cheque--Cheque was dishonoured--Application for leaflets of cheque book--

 PLJ 2022 Lahore 731

Civil Procedure Code, 1908 (V of 1908)--

----O.XXXVII--Suit for recovery--Issuance of cheque--Cheque was dishonoured--Application for leaflets of cheque book--Dismissal of suit--Star witness of appellant was hostile by appellant--Non-producing of evidence by appellant regarding connection of respondent with any travel agency--Contradiction in evidence of appellant--Appellant was failed to discharge onus of proof--Star witness on whom appellant had placed his reliance, was declared hostile by appellant himself--Respondent produced his service card as a security guard which put to rest tall claims by appellant about respondent running a travelling agency--The appellant could not produce any evidence establishing any connection of respondent with any travel agency --The appellant also admitted that he had no bank account--A person without a bank account is hardly in a position to lend such a huge amount of cash--There are major contradictions in evidence of appellant--Neither appellant nor his brother deposed a word about monthly income of appellant--Appellant failed to discharge onus of proof, could not establish his case and therefore, onus never shifted--Appeal dismissed.

                                       [Pp. 733, 734, 735 & 736] A, B, C, D, E, F & I

2021 CLD 1261 and 1973 SCMR 332 ref.

Malik Muhammad Latif Khokhar, Advocate for Appellant.

Nemo for Respondent.

Date of hearing: 2.12.2021.

 PLJ 2022 Lahore 731
Present: Muhammad Shan Gul, J.
SHAHID AKHTAR--Appellant
versus
MUHAMMAD AZAM ABBAS--Respondent
R.F.A. No. 24 of 2017, heard on 2.12.2021.

Judgment

Through this judgment, the titled Regular First Appeal is sought to be decided.

2. Shahid Akhtar, appellant, filed a suit under Order XXXVII of the Code of Civil Procedure, 1908 for the recovery of Rs. 15,00,000/-due on account of Cheque No. 5408067 dated 01.01.2014 of Bank Al-Habib Limited Parco Branch drawn by respondent Muhammad Azam Abbas. The appellant maintained before the District Court that he is an electrician and on account of his acquaintance with the respondent, he lent and loaned an amount Rs. 15,00,000/-to the respondent. The appellant averred that the respondent was in need of money for the purpose of going abroad and therefore the appellant ended up lending Rs. 15,00,000/-in the presence of two witnesses i.e. Qaiser Abbas son of Riaz Hussain and Zubair Akhtar son of Ashiq Hussain. The appellant maintained that the respondent executed the cheque in issue for the purpose of repayment of borrowed amount and which when presented before the concerned bank was dishonoured on account of insufficient funds and despite repeated requests the respondent had refused to return the borrowed amount and it is therefore, that the appellant had been constrained to file a suit for recovery.

3. The respondent filed leave to defend the suit and in his written statement raised numerous legal objections and out rightly denied receiving any money from the appellant and rather produced a photo copy of an application filed by him before the concerned Police Station in which he had complained about leaflets of his cheque book having gone missing.

4. Both competing parties produced their respective evidence. While the appellant himself appeared as PW. 1 he produced Qaiser Abbas as PW.2 and Zubair Akhtar (his real brother) as PW.3. In documentary evidence, the appellant produced the disputed cheque as Ex.Pl and dishonor slip as Ex.P2. However, Qaiser Abbas, PW.2, could only get his examination-in-chief recorded and did not turn up for his cross-examination because the appellant claimed that he had turned hostile and had been won over by the respondent. Therefore, his testimony was not taken into account by the District Court and quite rightly at that because no opportunity of cross-examination upon this witness had been granted.

5. On the other hand, the respondent appeared as DW.1 and by way of documentary evidence, submitted, inter-alia, copy of his appointment order as Security Guard as mark ‘A’ and a copy of an application to SHO P.S. Mehmood Kot complaining about loss of leaflets of his cheque book.

6. The District Court after appraising evidence and after examining the deposition of witnesses proceeded to dismiss the suit filed by the appellant since in the opinion of the District Court the appellant had failed to prove his case through cogent, convincing and confidence inspiring evidence.

7. Learned counsel for the appellant has been heard.

8. Before alluding to the contentions raised by the learned counsel for the appellant, it may be pointed out that this Regular First Appeal was filed in 2017 and eversince has been rotting at the motion stage without any adjudication. On 25.11.2021, when this matter came up before this Court, it was pointed out to the learned counsel for the appellant that his appeal had no merit and that it was worthy of being dismissed at the limine stage. Learned counsel for the appellant however, pleaded that since it was a first appeal it ought to be admitted as of right. Learned counsel for the appellant was confronted with the law laid down by a learned Division Bench of this Court in the case of Messrs Colony Textile Mills Ltd and another vs. First Punjab Modarba (2021 CLD 1212), by a Single Bench in Hamid Raza vs. Sajid Hussain (2014 CLC 1057) and by the Hon’ble Supreme Court of Pakistan in the case of Sohail Hameed Butt vs. Mst. Nudrat Nafees (2008 SCMR 635) in terms of which a Regular First Appeal could be dismissed in limine if the facts and circumstances of the case warranted so. Learned counsel for the appellant however, requested for summoning the record and therefore, his request was granted and record was summoned and the matter was posted for hearing for today.

9. Learned counsel for the appellant has maintained that by presenting the negotiable instrument i.e. the cheque before the Court alongwith the dishonor slip, the appellant had discharged his initial burden, therefore, it was incumbent upon the respondent to prove that he had not received any payment or issued any cheque and that since presumption of truth is attached to a negotiable instrument the appellant had proved his case and the judgment passed by the District Court was not sustainable in law.

10. I have heard the learned counsel for the appellant and have perused the available record.

11. It is a fact that the star witness on whom the appellant had placed his reliance, i.e. Qaiser Abbas son of Riaz Hussain, and in whose presence the appellant alleged that he had handed over money to the respondent and for securing which a cheque signed by the respondent was issued was declared hostile by the appellant himself who averred before the District Court that Qaiser Abbas had been won over by the respondent and therefore, he could not produce him for the purpose of cross-examination. Qaiser Abbas’s testimony could therefore, not be relied upon. The other witness Zubair Akhtar son of Ashiq Hussain being the real brother of the appellant but which brother did not have any idea about the reason for the loan or about the monthly amount that his brother earned so as to be placed in a position to lend such an amount of money and who merely dilly-dallied the issue during his deposition, is of no help to the appellant any way.

12. On the other hand, the respondent produced his service card as a security guard which put to rest tall claims by the appellant about the respondent running a travelling agency. The appellant on the other hand could not produce any evidence establishing any connection of the respondent with any travel agency and therefore, could not prove the reason for advancing the alleged loan in question. The respondent also produced copy of the application which he preferred to Mehmood Kot Police Station about loss of leaflets from his cheque book.

13. Furthermore, there are discrepancies and contradictions galore on pivotal issues of the case in the evidence of the appellant and which will be discussed in the latter part of this discourse.

14. But what is the most alarming is that the appellant or his witness did not utter a single word about how an electrician had the financial worth to dish out Rs. 15,00,000/-and that too, by way of loan! The solitary witness produced by the appellant i.e. his real brother expressed complete ignorance about the financial worth or income of the appellant, his real brother. The appellant also admitted that he had no bank account whatsoever. A person without a bank account is hardly in a position to lend such a huge amount of cash and therefore, this compromises the stance taken by the appellant of lending money to the respondent. It does not appeal to reason that an electrician with no bank account, no property (landed or otherwise) and with no apparent high source of income could dole out fifteen lac rupees by way of loan.

15. Additionally, there are major contradictions in the evidence of the appellant while appearing as PW.1 about who filled up the cheque. In the earlier part of his cross-examination, the appellant recorded that the respondent himself filled up the cheque in his own handwriting, then, perhaps on the basis of fear of being found out, he denied his statement and towards the end of his recorded cross-examination stated that cheque was filled up by an unknown friend of the respondent.

16. Also, had the independent witness Qaiser Abbas stood up for the appellant and supported his claim there may have been something to look at but his withdrawal left only one witness in favour of the appellant i.e. his own real brother Zubair Akhtar and whose testimony is of no help to the appellant because of the following factors:

(a)      Zubair Akhtar was not an independent witness being real brother of the appellant;

(b)      Zubair Akhtar was not aware of the monthly income of the appellant so as to be able to vouch for his brother being financially comfortable and in a position to lend the amount of money in question;

(c)      Zubair Akhtar was absolutely ignorant about why the loan was extended. This is indeed unbelievable because according to the case set up by the appellant, money changed hands in front of Zubair Akhtar and let alone a real brother, any person in whose presence an amount of Rs. 15,00,000/-is changing hands would definitely inquire as to why the same was being done; and

(d)      This therefore, casts serious doubts about the presence of Zubair Akhtar during the course of the alleged transaction.

17. Even more importantly both, the appellant as also his witness Zubair Akhtar, remained totally silent on the financial status of the appellant. It may be mentioned here that the appellant has no account in any bank and which means he does not have funds to be kept in a bank. The appellant does not own any land or property either. Also, neither the appellant nor his brother deposed a word about monthly income of the appellant or for that matter any other source so as to make the appellant a man of comfortable means who was able to extend loans.

18. The appellant’s case had to stand on its own base and the appellant could not be allowed to unjustly enrich himself simply on account of the presumption of correctness, albeit rebuttable, attached with a negotiable instrument. It was for the appellant to discharge initial burden of proof and which onus could have shifted onto the respondent in the event that the appellant discharged the initial burden. The non-existence of consideration was so probable in the instant case that no prudent man could have believed the existence thereof. The appellant failed to discharge onus of proof, could not establish his case and therefore, the onus never shifted.

19. Even the honourable Supreme Court of Pakistan in (2021 CLD 1261) “Rab Nawaz Khan v. Javed Khan Swati” after relying on a judgment of the Indian Supreme Court has held “to disbelieve 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 act upon the plea that consideration did not exist”.

20. If the fact and circumstances of the present matter were to be measured in terms of this precedent case it would transpire that the claim of the appellant is so outrageous in its defiance of logic that no sane man after having applied his mind to the facts and circumstances of the present case would ever draw the conclusion that the appellant loaned an amount of Rs. 15,00,000/-to the respondent and which appellant neither maintained a bank account, was an electrician by profession, had no other source of income, had no property or landed property in his name, whose main witness had resiled, whose evidence was full of discrepancies and contradictions and whose other witness (his real brother) did not have any idea about why the appellant had lent the amount so claimed or about the monthly income of the appellant.

21. It may also be added here that the presumption attached with Negotiable Instruments is always rebuttable and the honourable Supreme Court of Pakistan in (1973 SCMR 332) “Salar Abdur Rauf v. Mst. Barkat Bibi” has held that if a plaintiff fails to produce creditworthy evidence then he cannot be allowed to turn around and invoke the presumption contained under Section 118 of the Negotiable Instruments Act 1881.

22. In (2020 CLD 265) “Ghulam Murtaza v. Muhammad Rafi” it has been held that “presumption under Section 118 of the Negotiable Instruments Act 1881 is not a conclusive presumption rather it is rebuttable in nature and initially burden of proving that the Negotiable Instrument is executed against consideration is on the plaintiff. In the matter before this Court the appellant has failed to discharge the initial burden and therefore has not been able to shift the onus.

23. In a celebrated Division Bench judgment of this Court reported as (2009 CLD 1301) “Asif Ali and 6 others v. Saeed Muhammad” it has been held that “when a plaintiff fails to prove his source and capacity to advance a loan, the presumption contained in Article 118 stands rebutted since the Court has to act on the basis of preponderance of evidence”. It has also been held in the said judgment that, “the case of the respondent that the decision of the matter must be exclusively founded on the presumption emanating out of Section 118 of Negotiable Instruments Act cannot be accepted and there may be a case involving circumstances where the presumption stand repelled and the plaintiff has to prove his case”. The present matter indeed qualifies this test.

24. Seen from all angles, this Regular First Appeal comes across as meritless and is accordingly dismissed.

(Y.A.)  Appeal dismissed