PLJ 2022 Lahore (Note) 124
Civil Procedure Code, 1908 (V of 1908)--
----O.XXXVII, Rr. 1 & 2--Qanun-e-Shahadat Order, (10 of 1984), Art. 76(c)--Suit for recovery--Agreement regarding selling of trailer--Issuance of cheque--Cheque was lost--Suit was decreed--Secondary evidence--Police report regarding loss of cheque--Challenge to--Obligation of respondent--Evidence of Respondent was materially discrepant and inconsistent on several counts--Respondent failed to prove his case as stance put forth by him was badly hit by legal maxims "Secundum allegata ct probala", (No one could be allowed to prove a fact which was not pleaded under law) and "Allegans contraria non est audiendvs" (A person alleging contradictory facts should not be heard--Respondent was under heavy onus and obligation to prove that Cheque had not been lost due to his own default or negligence--Trial Court neither considered material fact of loss of Cheque qua availability of Second Cheque referred in Police Report by Respondent which was claimed by Appellant to have been issued to him which remained in his possession and was produced in original--This fact completely destroyed story of Respondent--Respondent could not prove loss of Cheque, hence secondary evidence had lost its meaning and evidentiary worth--Appellant in his written statement as well as in his deposition has categorically stated that Cheque was returned to him by Respondent which was destroyed by him after he made entire payment to Respondent, whereas, Second Cheque given to him by Respondent as guarantee cheque was still available with him--Respondent failed to prove his claim as averred in plaint--Appeal allowed. [Para 5 & 6] A, B, D, E & F & G
Civil Procedure Code, 1908 (V of 1908)--
----O.VII R. 16--less of negotiate instrument--If a suit is brought on loss of negotiable instrument, it is mandatory and incumbent upon plaintiff to firstly prove that instrument is lost and then claim indemnity. [Para 6] C
Syed Areeb Abdul Khafiz Bukhari, Advocate for Appellant.
Ch. Muhammad Nawaz, Advocate for Respondent.
Date of hearing 1.11.2021.
PLJ 2022 Lahore (Note) 124
[Bahawalpur Bench Bahawalpur]
Present: Abid Hussain Chattha, J.
EJAZ AHMED--Appellant
versus
ABDUL HAMEED--Respondent
R.F.A. No. 7 of 2021/BWP, heard on 1.11.2021.
Judgment
This Appeal is directed against the judgment and decree dated 10.10.2020 passed by the Additional District Judge, Ahmed Pur East, whereby, the suit filed by the Respondent for recovery of
Rs. 2,500,000/- under Order XXXVII, Rules 1 & 2 of the Code of Civil Procedure, 1908 (the "CPC") was decreed against the Appellant.
2. The brief facts of this Appeal are that the Respondent filed a suit for recovery of Rs. 2,500,000/- on the basis of a cheque Bearing No. 9924452 dated 07.05.2012 (the "Cheque"), drawn on Account No. 0310868021000574 at Muslim Commercial Bank Limited (MCB), Uch Sharif Branch averring therein that the Respondent maintained friendly relationship with the Appellant who purchased a Trailer Nissan bearing Registration No. TLR-520 for an amount of Rs. 7,000,000/-. The fact of sale was recorded in the presence of witnesses and in lieu of the remaining, part payment of Rs. 2,500.000/- the Appellant delivered the Cheque to the Respondent. It was further asserted that the Cheque was lost on 02.05.2012 and this fact was recorded in the Police Report No. 55 dated 02.05.2012. The Respondent time and again asked the Appellant for remaining payment regarding the Trailer but to no avail, hence he filed the suit under Order XXXVII, Rules 1 & 2 of the CPC.
3. The Appellant filed written statement and resisted the suit both on legal and factual plane. It was submitted in the written statement that the Appellant has paid the entire amount to the Respondent and nothing is due against him. Rather, the Respondent has to pay Rs. 86,800/- to the Appellant. It was further clarified trial the Trailer in question was owned by the Respondent in concert with another person and the Appellant made payment of the same through Cheque No. 0659086 as well as through cash and kind through provision of diesel. Half of the payment was made to the Respondent's partner, namely, Jaam Abdul Ghafoor and the balance amount was paid to the Respondent. It was also asserted that the Respondent was involved in business with the Appellant and used to buy diesel from him and at the time of purchase of Trailer, the Respondent was to pay Rs. 362.433/- to the Appellant while the remaining amount was also paid by the Appellant to the Respondent, complete details of which were listed in preliminary Paragraph No. 5 of the written statement. Thereafter, the Cheque was returned by the Respondent to the Appellant in the presence of witnesses which he destroyed. As such, the Respondent with mala fide and fraudulent intention registered a fake Police Report and filed a frivolous suit against the Appellant which was liable to be dismissed. The Trial Court out of the divergent pleadings of the parties framed the following issues:
1. Whether the plaintiff is entitled to recover Rs. 2,500,000/- from the defendant on the basis of impugned cheque as remaining outstanding sale consideration of vehicle Bearing No. TLR-520? OPP
2. Whether the defendant purchased vehicle in question from plaintiff and one other Jam Abdul Ghafoor and paid total sale consideration of the vehicle to both of them and nothing was outstanding at this part? OPD
3. Whether the plaintiff lacks cause of action'to file this suit and has approached the Court with un-clean hands? OPD
4. Whether the suit of plaintiff is based on false and baseless facts and is liable to be dismissed with special costs? OPD
5. Relief.
4. The parties recorded their evidence in support of their respective contentions. Muhammad Mumtaz and Abdul Hameed appeared as PW-1 & PW-2, respectively. In documentary evidence the Respondent produced, photocopy of the Cheque as Ex.P-1, Specimen Signature Card as Ex.P-2, Bank Statement as Ex.P-3. Agreement regarding selling of Trailer as Ex.P-4, Report regarding theft of the Cheque as Ex.P-5, Receipt regarding partnership as- Mark-A, letter of All Pakistan Oil Tankers Owners Association (Regd.) as Mark-B. On the other hand, Ejaz Ahmad appeared as DW-1 who produced MCB Cheque No. 6953603 (the "Second Cheque") as Ex.D-1 in documentary evidence.
5. Issue No. 1 was the pivotal issue through which the Respondent was required to prove as to whether he was entitled to recover Rs. 2.500,000/- from the Appellant on the basis of the Cheque. The evidence of the Respondent was materially discrepant and inconsistent on several counts. In this behalf, it is noted that due date of the Cheque was 07.05.2012. In paragraph No. 3 of the plaint, the Respondent categorically stated that on 02.05.2012, he was going to encash the Cheque but it was lost on the way. It remained unexplainable that why the Cheque which was encashable on 07.05.2012 was being taken for encashment on 02.05.2012. Similarly, the Respondent allegedly reported the lost Cheque on 02.05.2012 in the Police Station. The Police Report (Ex.P-5) was entered on the basis of an affidavit of the Respondent dated 25.04.2012 which stated that 10 days ago, the Respondent went to Uch Sharif for business purposes when a CNIC and two signed cheques drawn on MCB, Uch Sharif Branch alongwith some receipts all available in one parcel were lost. Hence, date of loss of the Cheque becomes 15.04.2012. The Respondent specifically referred the Cheque and the Second Cheque. Thereafter, the Respondent while appearing as PW-2 made a departure from his pleadings and stated yet another date of loss of the Cheque i.e. 16.04.2012 and testified that on 16.04.2012, he was going to Allied Bank Limited, Uch Sharif Branch to get the CDR prepared for procuring wheat bags regarding which he took an envelop in which the Cheque was lost. As this was not enough in his cross examination, the Respondent admitted that the Appellant gave him the Cheque on 01.03.2012 which was to be encashed on 07.05.2012. He volunteered that he had stated to his counsel that he was going to get CDR prepared for wheat bags on 20.04.2012 and further stated that on the date when the Cheque was lost, he was going to encash it. In nutshell, the Respondent allegedly stated four different dates of loss of the Cheque i.e. 02.05.2012, 15.04.2012, 16.04.2012 and 20.04.2012. Further, in his cross examination, he also stated that he came to know about the lost cheque on the day of its encashment. Accordingly, the Respondent failed to prove his case as the stance put forth by him was badly hit by the legal maxims "Secundum allegata et probata", (No one could be allowed to prove a fact which was not pleaded under the law) and "Allegans contraria non est audiendvs" (A person alleging contradictory facts should not be heard.
6. As per provisions contained in Order VII, Rule 16 of the, CPC, if a suit is brought on loss of negotiable instrument, it is mandatory and incumbent upon the plaintiff to firstly prove that the instrument is lost and then claim indemnity. Similarly, under Article 76(c) of the Qanoon-e-Shahadat Order, 1984, the Respondent was under heavy onus and obligation to prove that the Cheque had not been lost due to his own default or negligence. However, the Trial Court at the time of deciding the Application of the Respondent for permission to lead secondary evidence in respect of the Cheque, passed Order dated 21.11.2017 in the following terms:
"3. It is evident from the record that plaintiff/applicant has taken the plea of loss of impugned bank cheque prior to institution of his suit. The learned counsel for the defendant has referred to mention of some other bank cheque in the above referred police report and stated that other hank cheque issued by plaintiff/applicant in the name of respondent/defendant was available in the possession of defendant/respondent. That aspect of the matter is to be considered at relevant stage. As the plaintiff has alleged loss of impugned document, therefore, he is allowed to lead secondary evidence in respect of that document, the evidentiary worth of which will be looked into on final stage."
Notwithstanding the above order, surprisingly, the Trial Court neither considered the material fact of loss of the Cheque qua the availability of the Second Cheque referred in the Police Report by the Respondent which was claimed by the Appellant to have been issued to him which remained in his possession and was produced in original as Ex.D-1. This fact completely destroyed the story of the Respondent. The fact regarding loss of original Cheque was required to be proved before leading secondary' evidence and if it was not so done then even if secondary evidence is produced, it would become valueless, vitiating all the proceedings built on such secondary evidence and the Court has to first consider and resolve the question as to whether loss of the Cheque has been proved and if it finds so proved, then move on to examine intrinsic worth of secondary evidence. Reliance, in this behalf, is placed on case titled, "Messrs Expeditor International Pakistan (Pvt.) Ltd, v. Messrs Sitara Textile industries Ltd., and 2 others" (2018 CLC 994). It is quite clear that the Respondent could not prove the loss of the Cheque, hence the secondary evidence had lost its meaning and evidentiary worth. Moreover, there is no explanation to the effect that if the Cheque was lost on 02.05.2012, why the suit was brought on 07.05.2015, the last day of limitation. Further, the Appellant in his written statement as well as in his deposition has categorically stated that the Cheque was returned to him by the Respondent which was destroyed by him after he made the entire payment to the Respondent, whereas, the Second Cheque given to him by the Respondent as guarantee cheque was still available with him. This portion of the deposition was not rebutted or questioned at all in cross-examination, hence to this extent, evidence tendered by the Appellant would be deemed to have been admitted. Hence, in my considered view, the Respondent failed to prove his claim as averred in the plaint.
7. In view of the above discussion, this appeal is allowed and the impugned Judgment and Decree dated 10.10.2020 passed by the Additional District Judge, Ahmad Pur East is set aside. Consequently, the suit for recovery filed by the Respondent stands dismissed. No order as to costs.
(Y.A.) Petition dismissed
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