After death of cheque issuer ? Agar cheque jari karne wala foat hu jai tu recovery kese hu gi
After the death of cheque issuer ?
After the death of a cheque issuer, the executor of their estate or the legal representative typically handles their financial matters, including any outstanding cheques. The process may involve probate and legal documentation to ensure proper distribution of assets according to the deceased's will or applicable laws.
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| Agar cheque jari karne wala foat hu jata hai |
Zair nazar Judgement (Lahore High court)main check jari karne wala foat hu jata hai.
Or du bache minor hote hain or aik respondent mulak se bahar tha.
Check dene wale ne civil suit file kia ju ke kharaj hu gia or High court ne bhi trial court ka faisla barqarar rakha
Kionke appeal karne wala case sabat karne main fail hu gia tha.
Wo koi gwah pesh na kar saka
Or us ke ilawa signature wali siahi dosri syahi se different thi.
Or negotiable instrument ka qanoon kehta hai ke wo banda liable hu sakta hai jiss ne documents per signature kiye hun. Lihaza aik interested
judgement Is end of the article
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Judgement
Or re
Stereo. HCJDA 38
JUDGMENT SHEET
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
R.F.A.No.1228 of 2015
Sheikh Muhammad Aslam
…Versus…
Muhammad Ali Nawaz, etc.
JUDGMENT
Date of Hearing: 04.04.2023
Appellant(s) for: Mr. Muhammad Shahzad Shaukat, Advocate
Respondent(s) for: Mr. Tahir Mahmood Ahmad Khokhar,
Advocate
SHAHID BILAL HASSAN-J: Succinctly, the appellant
instituted a suit for recovery of Rs.5,000,000/- on the basis of
cheque under Order XXXVII, Rules 1 & 2, Code of Civil
Procedure, 1908 against the respondents. The respondents No.1
to 3 are minors and firstly the suit was instituted against them
through Sheikh Muhammad Zafar, real uncle; however, later on,
on the application of respondent No.4 amended plaint was
submitted and suit against the minors was filed through Mst.
Samrana Nawaz, real mother of the minors. The appellant
contended that he is real brother of Sheikh Pervaiz Nawaz, who
had taken loan from several persons as well as banks. Pervaiz
Nawaz had to make repayment of loans to banks and other
persons and he asked the appellant that he was going to sell his
property and was badly in need of Rs.5,000,000/- as loan; that
the appellant in presence of witnesses on 27.09.2007 gave
R.F.A.No.1228 of 2015
2
Rs.5,000,000/- him loan and Pervaiz Nawaz issued a cheque
No.21951889, MCB Limited, Ayub Chowk Jhang, in favour of
the appellant; that on 28.02.2008, Pervaiz Nawaz died and the
legal heirs of Pervaiz Nawaz made an assurance to the appellant
that the cheque will be honoured on the fixed date but the same
was dishonoured when presented in the bank on the fixed date;
that the respondents are legal heirs of Pervaiz Nawaz deceased
and they are legally and morally bound for the payment of
borrowed amount of the dishonoured cheque, for which they
were repeatedly asked but they refused; hence, the suit. After
seeking leave to appear and defend the suit, the suit was
contested by the respondents, who raised preliminary as well as
legal and factual objections. Out of the divergent pleadings of
the parties, the learned trial Court framed issues and evidence of
the parties in pro and contra was recorded. On conclusion of
trial, the learned trial Court vide impugned judgment and decree
dated 22.05.2015 dismissed suit of the appellant; hence, the
instant regular first appeal.
2.
Heard.
3.
Purported lender and borrower in this case are real
brothers and the present respondents are legal heirs of the
borrower of the disputed amount namely Pervaiz Nawaz. Faced
with this proposition and scenario, the relevant sections in this
regard are 29 and 29-A of the Negotiable Instruments Act, 1881,
which provide:-
‘29. Liability of legal representative signing. A
legal representative of a deceased person who signs
R.F.A.No.1228 of 2015
3
his name to a promissory note, bill of exchange or
cheque is liable personally thereon unless he
expressly limits his liability to the extent of the
assets received by him as such.
29-A. Signature essential to liability. No person is
liable as maker, drawer, endorser or acceptor of a
promissory note, bill of exchange or cheque who
has not signed it as such:
Provided that where a person signs any such
instrument in a trade or assumed name he is liable
thereon as if he had signed it in his own name.’
(Underline for emphasis)
When the above provisions of law are read together and
considered, it can safely be inferred that a person (in this case
legal heirs) is liable only to pay the disputed amount of a
negotiable instrument when he signs the same and not otherwise.
In this case, no such occasion is apparent on record, rather it is
an admitted fact that the respondents No.1 to 3 are minors and
respondent No.4 was living abroad at the relevant time in order
to see her parents. Therefore, the respondents are not liable to
pay the disputed amount in the light of the above provision of
law and the suit against them is not maintainable but this fact
has not been considered and was perhaps overlooked by the
learned trial Court.
4.
Keeping aside the above observation, even then the
appellant has miserably failed to prove his stance because he
could not plead the names of the witnesses in whose presence
the disputed transaction took place and it is a settled principle of
law that a party cannot go beyond the pleadings and if anything
R.F.A.No.1228 of 2015
4
is produced or brought on record beyond pleadings the same
cannot be considered being inadmissible. In this regard for ready
reference the paragraph No.2 of the plaint is relevant, which is
reproduced as under:-
2۔ یہ کہ هظوی پزویش ًواس ًے هتعدد افزاد اور بٌکوى طے قزض بزائے
کبروببر حبصل کز رکھب تھب جض کی ادائیگی کیلئے بزادرم پزویش ًواس کو
یکوشت رقن کی ضزورت الحق تھی۔ پزویش ًواس ًے هي هدعی طے اص اهز کب
اظہبر کیب کہ وٍ اپٌی جبئیداد فزوخت کز رہب ہے اور وٍ جبئیداد فزوخت ہوًے پز
هي هدعی کو رقن واپض کز دیگب۔ اطی لئے هي هدعی اطے قزض هبلغ پچبص الکھ
روپے دے دے۔ لہذا هي هدعی ًے هورخہ2002۔00۔22کوبوقبم غلہ هٌڈی جھٌگ
روبزو گواہبى هبلغ پچبص الکھ روپے ادا کز دیئے اور پزویش ًے چیک ًوبزی
25015110 هورخہ 2000۔00۔01 اساں هظلن کوزشل بٌک ایوة چوک جھٌگ
صدر هي هدعی کز دیب۔'
In this view of the matter, the evidence produced by the
appellant except his own deposition cannot be relied upon; in
this regard reliance is placed on Sh. Fateh Muhammad v.
Muhammad Adil and others (PLD 2008 SC 82) and Hyder Ali
Bhimji v. Additional District Judge Karachi South and another
(PLD 2012 SC 279). Even the same is not worthy of credence,
because it is an admitted fact on record that after the demise of
Pervaiz Nawaz, all the account books, cheque books, etc. and
other things belonging to the business of Pervaiz Nawaz were
taken over by the appellant and Sheikh Muhammad Zafar and
the appellant has taken a stance that he entered the disputed
amount in accounts book but he did not produce the same in
evidence. Moreover, it has emerged on record during evidence
that one Ikhlaq Hussain Baluch was employee of Pervaiz Nawaz
and after his demise he is serving as Munshi of the appellant but
the said Ikhlaq Hussain Baluch, who was best witness in
R.F.A.No.1228 of 2015
5
circumstances of the instant case, as he used to keep the account
books of Pervaiz Nawaz, was not produced, so the adverse
presumption as per Article 129(g), Qanun-e-Shahadat Order,
1984 arises against the appellant that had he been produced in
the witness box, he would not have supported the stance of the
appellant.
5.
In addition to the above, as observed above, the
business of deceased Pervaiz Nawaz including the account
books, etc. was taken over by the appellant and Sheikh
Muhammad Zafar jointly but the said Muhammad Zafar, while
submitting application for leave to appear and defend being
guardian ad litem of the minors specifically and in a categorical
manner denied the averments of the plaint and stance of the
appellant. Had there been any such transaction and entry in
accounts book of joint venture, he (Muhammad Zafar) would
have consented the stance of the appellant but the position is not
as such.
6.
Moreover, the appellant has neither produced the
memo slip of the bank nor any bank official in support of his
stance and only cheque in dispute has been exhibited as Ex.P1,
which means that the cheque in dispute was not presented in the
Bank.
Besides, the learned trial Court has keenly and cautiously
compared the ink of signatures and other writing on the disputed
cheque Ex.P1 and overleaf signatures as per mandate of Article
84 of the Qanun-e-Shahadat Order, 1984 and has rightly
R.F.A.No.1228 of 2015
6
concluded that the ink of signatures differs from the ink of other
writing, which strengthen the doubt that the disputed cheque was
managed by the appellant as after death of Pervaiz Nawaz he
took over all the accounts books, cheque books and other things
of the business of deceased because the respondents No.1 to 3
were minors and respondent No.4 was living abroad and even
the respondents are foreign nationals.
7.
The compendium of the discussion above is that the
learned trial Court has appreciated evidence on record in a true
perspective, which otherwise was not necessary if the provisions
of sections 29 and 29-A of the Negotiable Instruments Act, 1881
have been kept in mind and adhered to by the learned trial Court,
and has reached to a just conclusion that the appellant has failed
to prove his case by leading unimpeachable, trustworthy and
confidence inspiring evidence. Resultantly, the appeal in hand
comes to naught and the same is hereby dismissed with costs
throughout.
(Shahid Bilal Hassan)
Judge
Approved for reporting.
Judge
M.A.Hassan
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