Order 37 suit rejected by High Court because case was pending under money landing act.
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| Order 37 suit rejected by High Court because case was pending under money landing act. |
مدعی نے درج ذیل غلطیاں کیں:
1. **عدم ثبوت:** لیز معاہدے کی تاریخ، وقت، اور مقام کے بارے میں کوئی تفصیلات فراہم نہیں کیں۔
2. **گواہوں کی عدم موجودگی:** چیک کی فراہمی کے وقت کے گواہ مدعی نے عدالت میں پیش نہیں کیے۔
3. **معاہدے کی عدم موجودگی:** چیک کی بنیاد پر لیز معاہدے کے تحریری ثبوت فراہم نہیں کیے، اور گواہوں کے بغیر معاہدے کی تصدیق کی۔
4. **قانونی کیس کا متضاد بیان:** مدعی نے مالی لین دین کی تفصیلات اور اس کی قانونی حیثیت کو ثابت کرنے میں ناکامی کا مظاہرہ کیا۔
5. **پہلے سے موجود قانونی مقدمہ:** مدعی پر پیسے lending کے ایکٹ کے تحت مقدمہ بھی درج تھا، جس سے اس کی ساکھ متاثر ہوئی۔
مدعی کے خلاف "پنجاب پروہیبیشن آف پرائیویٹ منی لینڈنگ ایکٹ، 2007" کے تحت ایک مقدمہ درج تھا۔ اس قانون کے تحت، غیر قانونی قرض دینے یا پیسوں کی غیر قانونی لین دین پر پابندی ہے۔ مدعی نے یہ تسلیم کیا کہ مدعا علیہ کے خلاف درج کیس میں وہ پیسے lending کے قوانین کی خلاف ورزی کے مرتکب ہوئے تھے، جو اس کے خلاف دعوے کی ساکھ کو متاثر کرتا ہے۔
یہ مقدمہ ایک
اپیل سے متعلق ہے جس میں ہائی کورٹ نے ٹرائل کورٹ کے فیصلے کو الٹ دیا۔ خلاصہ درج ذیل ہے:
**پس منظر:**
- **فریقین:** محمد اسghar (مدعی) بمقابلہ سکندر محمود دائی (مدعا علیہ)
- **مقدمہ:** ایک چیک کی بنیاد پر 34,50,000/- روپے کی وصولی کے لیے دائر کیا گیا مقدمہ۔
**مدعی کا دعویٰ:**
- کہا کہ ایک لیز معاہدہ کے تحت ٹریلر مدعا علیہ کو دیا گیا تھا۔
- دعویٰ کیا کہ مدعا علیہ پر 34,50,000/- روپے واجب الادا تھے، اور اسی مقدار کا چیک جاری کیا تھا۔
- چیک واپس ہو گیا، جس کے بعد مقدمہ دائر کیا گیا۔
**مدعا علیہ کا دفاع:**
- لیز یا ٹریلر کے حصول سے انکار کیا۔
- کہا کہ چیک کو قرض کی ضمانت کے طور پر دیا تھا اور 5,90,000/- روپے کی رقم ادا کی تھی، جبکہ 9,90,000/- روپے واپس کیے گئے تھے۔
- الزام عائد کیا کہ چیک کو غلط استعمال کیا گیا اور مدعی کے خلاف پیسے lending کے ایکٹ کے تحت مقدمہ درج کیا گیا۔
**ٹرائل کورٹ کا فیصلہ:**
- مدعی کے حق میں مقدمہ کا فیصلہ دیا، اور چیک کی رقم کی وصولی کا حکم دیا۔
**ہائی کورٹ کا فیصلہ:**
- **ٹرائل کورٹ کے فیصلے میں غلطی:**
- مدعی اہم شواہد پیش کرنے میں ناکام رہا، بشمول گواہ جو چیک کے جاری ہونے کے وقت موجود تھے۔
- لیز معاہدے کے بارے میں متضاد بیانات اور دستاویزات کی عدم موجودگی نے شکوک و شبہات پیدا کیے۔
- چیک کی منظوری اور عمل درآمد پر مبنی قیاس کو دفعہ 118 کے تحت رد کر دیا گیا کیونکہ مدعی نے چیک کے بدلے رقم اور اس کی عمل داری ثابت کرنے میں ناکامی کا مظاہرہ کیا۔
- **نتیجہ:**
- ہائی کورٹ نے ٹرائل کورٹ کے فیصلے کو کالعدم قرار دیا اور مقدمہ کو مدعی کی جانب سے ثبوت فراہم نہ کرنے کی بنیاد پر خارج کر دیا۔
یہ فیصلہ اس بات پر زور دیتا ہے کہ مالی لین دین اور چیک کے مقدمات میں قابل اعتماد شواہد فراہم کرنا اور بوجھِ ثبوت کو پورا کرنا ضروری ہے۔
2024 Y L R 1810
Muhammad Asghar Versus Sikandar Mehmood Dai
R.F.A. No. 207 of 2018
Suit for recovery on the basis of cheque---Assertion of the plaintiff---Initial burden of proof---Shifting of onus of proof---Scope---Claim of the respondent/plaintiff was that lease agreement was executed between the parties as he (plaintiff) had delivered a trailer/vehicle on Theka/lease to the appellant/defendant and then after the rendition of accounts an amount of Rs. 34,50,000/- was outstanding against the appellant/defendant and for payment of said amount he delivered a cheque to him (plaintiff)---Version of the appellant-defend ant was that neither he obtained trailer nor executed lease-agreement nor any amount was outstanding against him , instead there was another dispute between the parties for which he (defendant) lodged FIR against the respondent/plaintiff under the provisions of Punjab Prohibition of Private Money Lending Act, 2007 ---Appellant/ defendant assailed judgment decree passed against him by the Trial Court---Held, that in the plaint the respondent plaintiff had not mentioned the date, time and place when lease agreement was executed between the parties---Respondent/ plaintiff in his statement had also not disclosed the date, place and time when he approached the respondent/ plaintiff and demanded the outstanding amount---During cross-examination, the respondent/ plaintiff admitted that no lease agreement was written between the parties when he delivered a trailer on lease to defendant and there was no eye-witness of the said agreement---From the evidence it was clear that the respondent/ plaintiff had not been able to establish his claimed facts for which the appellant/defendant had delivered the cheque to him for payment---It was quite improbable that such a valuable trailer was given by the respondent/plaintiff to appellant without executing any written lease agreement---Witnesses of the cheque were not produced by the respondent/plaintiff before the Trial Court---Prima facie the evidence of respondent/plaintiff was not reliable, trustworthy and confidence inspiring because he was involved in an act against the provisions of the Punjab Prohibition of Private Money Lending Act, 2007, and the said fact was confirmed by him during his cross-examination that an FIR regarding private money lending was also registered against him--- Plaintiff was to discharge the initial burden of proving his case especially when the plaintiff had undertaken to prove that the negotiable instrument (cheque) had been duly executed for consideration---Issue had also been framed in the case, which had placed the onus in that behalf upon the respondent/plaintiff rather he himself led evidence to prove the payment of the money through two witnesses and his own statement, therefore, the respondent/plaintiff was precluded in law to urge in the present case/scenario that it was for the respondent to prove to the contrary---Respondent/plaintiff failed to prove his case as setup in the plaint and the Trial Court failed to appreciate the evidence on record and committed an error while passing the impugned judgment and decree --- High Court set-aside impugned judgment and decree passed by the Trial Court and resultantly, the suit was dismissed ---
Best witnesses, withholding of---Effect---In the plaint the respondent/plaintiff took stance that a cheque was delivered to the respondent/plaintiff in presence of two witnesses but, admittedly, they (said witnesses) were not produced before the Trial Court at the time of trial---Thus, best evidence had been withheld by the respondent/plaintiff, thus, an adverse inference under illustration (g) to Art. 129 of the Qanun-e-Shahadat 1984, could easily be drawn that in case they were produced they would not have supported plaintiff's version---Respondent/plaintiff failed to prove his case as setup in the plaint and the Trial Court failed to appreciate the evidence on record and committed an error while passing the impugned judgment and decree --- High Court set-aside impugned judgment and decree passed by the Trial Court and resultantly, the suit was dismissed
Negotiable instrument---Presumption about drawing consideration, etc.---Proof in negativity---Scope---Expression "until thecontrary is proved”---Effect---Section 118 of the Negotiable Instruments Act, 1881, does not envisage a conclusive presumption about drawing consideration etc. of the negotiable instrument, rather, without any fear ofcontradiction, it can be held to be rebuttable in nature and this is soclear and obvious from the expression used in the said S. i.e. "until the contrary is proved” ---Presumption attached with negotiable instruments is always rebuttable and if a plaintiff fails to produce creditworthy evidence then he cannot be allowed to turn around and invoke the presumption contained under S.118 of the Negotiable Instruments Act, 1881--- In the present matter , the respondent/plaintiff had failed to discharge the initial burden and therefore had not been able to shift the onus, in circumstances---Presumption contained in Art. 118 stood rebutted since the court had to act on the basis of preponderance of evidence---Respondent/plaintiff failed to prove his case as setup in the plaint and the Trial Court failed to appreciate the evidence on record and committed an error while passing the impugned judgment and decree --- High Court set-aside impugned judgment and decree passed by the Trial Court and resultantly, the suit was dismissed---
Judgment
---Against the judgment and decree dated 31.10.2018 passed by learned Addl. District Judge Sadiq Abad, whereby suit filed by respondent/plaintiff for recovery of 34,50,000/- on the basis of cheque under order XXXVII Rules 1, 2, C.P.C. was decreed, instant appeal has been preferred.
2. The brief facts of the case are that respondent/plaintiff filed the aforesaid suit against the appellant/defendant on the basis of cheque No.CD No.0041203 pertaining to Bank Al Falah Limited Main K.L.P Road Sadiqabad issued by the appellant/defendant with the assertion that there was cordial business relations between the parties inter-se; that in the month of April 2013, the plaintiff/respondent delivered a trailer to appellant/defendant on ‘Theka’/lease and appellant/defendant also kept on purchasing the tyres from the plaintiff/ respondent. During rendition of accounts in the month of April 2016 an amount of Rs. 34,50,000/- was outstanding against the appellant/defendant and in order to make the payment of aforesaid amount he (defendant) issued cheque amounting to Rs. 34,50,000/- in favour of the plaintiff/respondent in presence of witnesses namely Mohsin Ishaq and Sajid; that on 16.05.2016 the respondent/ plaintiff presented said cheque in the bank which was dishonoured; that the appellant/defendant is bound to pay the said amount to him; that the appellant/defendant has been asked repeatedly to pay his amount but he refused to do so.
3. The appellant/defendant moved an application for leave to appear and defend the suit which was allowed by the learned trial court vide order dated 26.10.2017. The appellant/defendant contested the suit by filing written statement alleging therein that nothing was outstanding against him. Out of divergent pleadings of the parties, following issues were framed:-
ISSUES:
1. Whether the plaintiff is entitled to recover Rs. 34,50,000/ on the basis of cheque No.CS-0041203 dated 20.04.2016 of Bank Al falah Ltd KLP Road, Sadiqabad as prayed ? OPP.
2. Whether the impugned cheque is forged and fictitious? OPD.
3. Whether the suit of the plaintiff is liable to be dismissed under order VII Rule 11 of C.P.C? OPD.
4. Whether the suit of the plaintiff is false, frivolous and same is liable to be dismissed. In case of dismissal of suit, defendant is entitled to receive special cost from the plaintiff.
5. Relief.
4. The plaintiff examined two witnesses including his statement as PW-1 and also tendered on record the original cheque Exh.P-1, Memo. thereof as Exh.P2 and attested copy of registration book as Exh.P-3. In rebuttal the plaintiff also produced one Shamasul-ul-Rehman as P.W-3. The plaintiff/respondent (P.W-2) in his examination-in-chief deposed that he runs the business of tyres and on account of business relationship he delivered a trailer to defendant on lease and besides this he had also sold the tyres to him(defendant). It was further alleged by the plaintiff/ P.W.2 that during rendition of accounts an amount of Rs. 34,50,000/- was outstanding against the defendant and in order to make the payment of said amount he (defendant) issued cheque ( Exh. P.1) in his favour but the said cheque was dishonoured on its presentation in the bank . He further deposed that one criminal case was registered against him at the instance of defendant/appellant. Imran Bashir D.M.S Al-falah Islamic Bank appeared in the witness as P. W-1 who deposed that disputed cheque was presented in his bank which dishonoured due to insufficient fund. On the other hand, the appellant/ defendant/DW-1 deposed that he runs a workshop and that neither he obtained any Trailer on lease from the plaintiff nor purchased any tyres from him. He further deposed that he had not delivered the disputed cheque to plaintiff against the outstanding amount. It was further contended by him that in fact he obtained an amount of Rs. 5,90,000/ as a loan from the respondent/ plaintiff for purchase of house from one Mohsin son of Atta Ullah and in this regard he delivered a blank cheque as well as other cheques belonging to his brother Muhammad Ramzan and his nephew Adnan Saleem and Muhammad Imran to respondent/plaintiff as a security/ guarantee. It was further contended by him that he had paid excess amount i.e Rs. 9,90,000/- including the interest to the plaintiff but he did not return his surety cheques rather used the same against the appellant/defendant on the basis of mala fides. It was further contended by him that the disputed cheque and other cheques belonging to his family were delivered to plaintiff in presence of witnesses namely Shahid Mehmood and Amir Hussain and the plaintiff did not lodge any criminal case regarding the dishonouring of cheque, rather, he lodged a criminal case against the plaintiff. DW2 and D.W-3 also deposed in line with DW-1. In documentary evidence he produced the certified copy of challan/report under section 173, C.r.P.C and interim orders in case FIR No.329 of 2017 under section 3/4 of Money Lending Act Police Station City Sadiq abad District Rahim Yar Khan as Exh. D-1
5. Learned counsel for the appellant/defendant contended that appellant neither obtained any amount from the respondent nor issued the cheque in question in his favour; that in fact the appellant obtained an amount of Rs. 5,90,000/ as a loan from the respondent/ plaintiff for purchase of house from one Mohsin son of Atta Ullah and in this regard he delivered a blank cheque as well as other cheques belonging to his brother Muhammad Ramzan and his nephew Adnan Saleem and Muhammad Imran to respondent as a security/ guarantee; that the appellant/ defendant had paid excess amount i.e Rs. 9,90,000/- including the interest to the plaintiff but he did not return his surety cheques rather used the same against the appellant/defendant on the basis of mala fides; that the respondent is notorious blackmailer and usurer person and this fact has been admitted by the respondent in his cross-examination; that during cross-examination the respondent/PW-2 admitted that a criminal case FIR No.329 of 2017 under sections 3/4 of Money Lending Act was registered against him at Police Station City Sadiqabad District Rahim Yar Khan at the instance of defendant/appellant; that marginal witnesses in whose presence the disputed cheque was allegedly delivered by the appellant to the plaintiff were not produced before the learned trial court; that neither the respondent nor the P.Ws had mentioned any specific date in the plaint or in evidence as to when the Trailer was delivered to the appellant/defendant on lease and this regard any rendition of accounts took place between the parties; that the respondent has failed to produce cogent evidence in order to establish his financial position and capacity that he was running the business of tyres and Trailer on `Theka/lease to different persons; that learned trial court while passing the impugned judgment and decree did not consider the evidence available on record in its true perspective and passed the impugned judgment without discussing the material available on record which is not sustainable in the eye of law. Thus, it is submitted that by accepting instant appeal impugned judgment and decree passed by learned trial court is liable to be set aside and suit of the respondent be dismissed.
6. On the other hand, learned counsel for respondent defends the impugned judgment and decree dated 31.10.2018 and submits that learned counsel for appellant has failed to point out any illegality or material irregularity in the same, which is liable to be upheld; that the plaintiff/ respondent delivered the Trailer to the defendant on ‘Theka’/lease and that the defendant also kept on purchasing the tyres from the plaintiff/ respondent and during rendition of accounts an amount of Rs. 34,50,000/- was outstanding against him (defendant) for which the defendant issued cheque which was dishonoured on its presentation in the bank; that execution of cheque Exh.P-1 has not been denied by the appellant; that the witnesses of the respondent/plaintiff have fully supported the version of the respondent; that the respondent/plaintiff by producing trust worthy and confidence inspiring evidence has proved its case against the appellant and learned trial court has decreed the suit in accordance with law after taking into consideration the evidence lead by the parties. Thus, it is submitted that instant appeal is liable to be dismissed.
7. Arguments heard. Record perused.
B
8. In the plaint the respondent/ plaintiff has not mentioned the date, time and place when lease agreement was executed between the parties in order to establish that the plaintiff had delivered a Trailer/vehicle on Theka/lease to the appellant/defendant and in this regard rendition of accounts had taken place between the parties. In the plaint the plaintiff/ respondent took stance that the after rendition of accounts an amount of Rs. 34,50,000/- was outstanding against the appellant/defendant and for payment of said amount the appellant/defendant delivered a cheque to plaintiff/ respondent in presence of witnesses namely Mohsin Ishaq and Sajid but admittedly they were not produced before the learned trial court at the time of trial, in this way, best evidence has been withheld by the respondent/plaintiff, thus, an adverse inference under illustration (g) to Article 129 of the Qanun-e-Shahadat Order, 1984 could easily be drawn that in case they were produced they would not have supported plaintiff's version. The plaintiff/respondent in his statement has also not disclosed the date, place and time when he approached the plaintiff/respondent and demanded the outstanding amount. During cross-examination, the plaintiff/respondent admitted that when he delivered a trailer on ‘Theka’/lease' to defendant no lease agreement was written between the parties and there was no eye-witness of the said agreement. The respondent/plaintiff while appearing as P.W-2 before the learned trial court made improvement by contending that he had delivered the trailer to defendant/appellant on lease/Theka in the month of April, 2012. During cross-examination the plaintiff/P.W2 also admitted that he does not know how many pair of tyres were sold by him to defendant/appellant and what was the actual price of said tyres. It was further admitted by P.W-2/plaintiff, that during rendition of accounts no witness was present and no receipt was executed qua the rendition of accounts. The plaintiff/P.W-2 in his cross-examination also admitted that after April, 2013 he had received an amount of Rs. 9,90,000/- in cash from the defendant/appellant. The plaintiff during his cross-examination also stated that although he sold some tyres to defendant but he did not maintain the record in this regard. The plaintiff in his evidence also admitted that a criminal case FIR No. 329 of 2017 under sections 3/4 of the Punjab Prohibition of Private Money Lending Act 2007 was registered against him at Police Station City Sadiqabad at the instance of the defendant/appellant. It was also contended by him that he has no cash book or maintains the record regarding his business.
9. From the evidence it is crystal clear that the respondent has not been able to establish that in the year 2013 he had delivered a trailer to the defendant on lease and during rendition of accounts an amount of Rs. 34,50,000/- was outstanding against the defendant and in this regard the appellant /defendant had delivered the cheque to him for payment of said amount. It is quite improbable that such a valuable trailer was given by the respondent/plaintiff to appellant without executing any written lease agreement. The witnesses of the cheque were not produced by the plaintiff before the learned trial court. Prima facie the evidence of respondent/plaintiff (P.W-2) is not reliable, trustworthy and confidence inspiring because he is involved in Punjab Prohibition of Private Money Lending Act, 2007 and this fact was confirmed by him during his cross-examination that case FIR No.329 of 2017 regarding Money Lending was also registered against him.
10. The defendant/appellant in his statement has categorically denied the version of the plaintiff and took stance that neither he obtained any Trailer on lease from the plaintiff nor purchased any tyres from him and no amount was outstanding against him. In fact, he obtained an amount of Rs. 5,90,000/ as a loan from the respondent/ plaintiff for purchase of house and in this regard, he delivered a blank cheque as well as other cheques belonging to his family to respondent/plaintiff as a security/ guarantee. It was further contended by him that he had paid excess amount i.e Rs. 9,90,000/- including the interest to the plaintiff but he did not return his surety cheques rather used the same against the appellant/defendant on the basis of mala fides. It was further contended by him that the plaintiff did not lodge 'any criminal case against him regarding the dishonouring of cheque, rather, he lodged a criminal case against the plaintiff. From the document Exh. D-1 it reveals that the defendant/appellant lodged a criminal case FIR No. 329 of 2017 offence under 3/4 of Money Lending Act against the plaintiff/ respondent at Police Station City Sadiqabad District Rahim Yar Khan. In the aforesaid criminal case, the appellant/defendant took a stance that he obtained an amount of Rs. 5,90,000/- form the plaintiff as a loan for purchase of a house in presence of witnesses namely Shahid Mehmood and Amir Hussain and delivered the disputed cheque as well as other cheques belonging to his family to plaintiff as a guarantee/security and thereafter he had paid excess amount i.e Rs. 9,90,000/- including the interest to the plaintiff but he did not return his surety cheques rather used the same against the appellant/defendant on the basis of mala fides. During investigation of aforesaid criminal case it was concluded by the I.O that the defendant had paid excess amount of Rs. 9,90,000/- including the interest to the plaintiff . It was further concluded by the I.O that the plaintiff/respondent is habitual usurer. The version of the defendant/appellant was supported by Shahid Mehmood (D. W-2) and Amir Hussain D. W-3) in their respective evidence.
11. Section 118 of the Negotiable Instruments Act, 1881, does not envisage a conclusive presumption about drawing consideration etc of the negotiable instrument, rather, without any fear of contradiction, it can be held to be rebuttable in nature and this is so clear and obvious from the expression used in the Section i.e "until the contrary is proved". The question, which shall thus arises for the consideration is that where a claim is propounded on the basis of a negotiable instrument is it necessary and imperative in all such cases that the defendant should prove in the negative, that he has not drawn the instrument and that it is without consideration or it is for the plaintiff to discharge the initial burden of proving his case in this regard especially when the plaintiff has undertaken to prove that the negotiable
instrument (cheque) has been duly executed for the consideration by not only that Issue No.1 has been framed in this case, which has placed the onus in this behalf upon the respondent/plaintiff rather he himself led evidence to prove the payment of the money through two witnesses, his own statement, therefore, as per the judgment reported as Salar Abdul Rauf v. Mst. Barkat Bibi (1973 SCMR 332), the respondent/plaintiff is precluded in law to urge in this case that it was for the respondent to prove to the contrary. It may also be added here that the presumption attached with Negotiable Instruments is always rebuttable and the
Hon'ble Supreme Court of Pakistan 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. In the case reported as Ghulam Murtaza v. Muhammad Rafiq (2020 CLD 265), 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
H
respondent/plaintiff has failed to discharge the initial burden and therefore has not been able to shift the onus. I am also fortified my view seeking guidance from the judgment passed by Division Bench in case titled “Asif Ali and 6 others v. Saeed Muhammad” (2009 CLD 1301) in which it has been held that “when a plaintiff's 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.”
12. Keeping in view the evidence available on record the respondent/ plaintiff failed to prove his case as setup in the plaint. In these circumstances, the findings of learned trial court on issues Nos.1, 2 are reversed and same are decided in favour of the appellant/ defendant. The learned trial court failed to appreciate.the evidence on record and committed an error while passing the impugned judgment and decree dated 31.10.2018. Thus, instant appeal is accepted, judgment and decree dated 31.10.2018 passed by learned Addl. District Judge Sadiq Abad is set aside. Resultantly, the suit of the respondent/plaintiff for recovery of an amount of Rs. 34,50,000/- on the basis of cheque under Order XXXVII rules 1, 2 C.P.C. is dismissed. No order as to costs.
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