JUDGMENT SHEET

IN THE LAHORE HIGH COURT, MULTAN BENCH

MULTAN.
JUDICIAL DEPARTMENT

R.F.A. No.198 of 2011.

Muhammad Aslam Versus. Abid Ali

J U D G M E N T.

Date of Hearing 27.11.2014

Appellant By Mr. M. Aftab Malik Advocate.
Respondent by Mr. Hakim ud Din Qureshi Advocate.

MAHMOOD AHMAD BHATTI, J: This Regular First Appeal is

directed against the judgment and decree dated 17.5.2011 passed by

the learned Addl. District Judge, Multan, whereby the suit of Abid

Ali, respondent/plaintiff for the recovery of Rs.3,50,000/- was

decreed.

2. Briefly, the facts are that the respondent/plaintiff instituted

a suit for the recovery of Rs.3,50,000/- under Order XXXVII

CPC. This suit rested on a cheque bearing No.A-4793389 drawn

on National Bank of Pakistan, Bosan Road Branch, Multan. The

cheque was presented for encashment, but the same turned out to

be a dud cheque and was dishonoured.

3. The appellant/defendant filed an application seeking leave

to defend. However, instead of contesting the same, the learned

counsel for the plaintiff made a statement to the effect that the

plaintiff had had no objection to granting leave to defend

W.P.No.198-2011 2

provided the defendant was made to furnish a surety/security

equivalent to the amount claimed in the suit. Resultantly, leave to

defend was granted to the appellant vide order dated 20.1.2010

passed by the learned trial Court. Subsequent to the leave

granting order dated 20.1.2010, the defendant/appellant filed

written statement in which he took the plea that he had a business

transaction with the plaintiff and nothing was due from him to the

plaintiff and that he had issued the cheque in question to the

plaintiff as a guarantee, which was to be used at the time of final

settlement between the parties to the suit.

4. Out of the divergent pleadings of the parties, the following

issues were framed on 8.3.2010:-

“1. Whether the plaintiff has no cause of action and locus

standi to file this suit as the suit is misconceived of
facts? OPD

2. Whether the plaintiff has not come to the Court with

clean hands and as such this Court has got no
jurisdiction to entertain the matter? OPD

3. Whether the impugned cheque was as security without

consideration and a criminal case was registered qua the
defendant, who remained in jail for six months and was
released on bail, if so, its effect? OPD

4. Whether the plaintiff advanced a sum of Rs.3,50,000/-

as loan to the defendant, who issued cheque and on
presentation of the same it was dishonoured. If so its
effect? OPP

5. Relief.”

5. In order to prove his case, the plaintiff appeared as P.W.1,

while he produced Muhammad Aslam son of Muhammad Asghar

W.P.No.198-2011 3

as P.W.2. He also examined Muhammad Ashraf son of Ghulam

Ali as P.W.3. In documentary evidence, the cheque in question

was tendered in evidence as Exh.P.1, while the memos issued by

National Bank of Pakistan, Bosan Road Branch, Multan

indicating the non-payment to the plaintiff on account of

insufficient funds in the account of the defendant were got

exhibited as Exh.P.2 to Exh.P.4.

6. On 4.3.2011, the appellant/defendant was required to

produce evidence in rebuttal on 15.3.2011. Since he failed to

avail of the opportunities provided to him to adduce evidence in

support of his plea, his right to adduce evidence was closed vide

order dated 9.5.2011. As such the case of the appellant/defendant

went by default.

7. As stated above, the learned trial Court proceeded to decree

the suit of the respondent as prayed for.

8. In support of this appeal, the learned counsel for the

appellant contends that there was no justification to close the

evidence of the appellant on 9.5.2011; that the plaintiff lodged

FIR No.122 dated 12.2.2007 under section 489-F PPC at Police

Station Gulgashat District Multan; that the appellant remained

behind the bars for six months in that case and he is being made

to suffer again on the basis of the very same cheque; that if at all

the respondent/plaintiff had any claim, he could have instituted a

suit for rendition of accounts; that the evidence produced by the

W.P.No.198-2011 4

respondent was misconstrued. Finally, it was argued that even in

the absence of any evidence of the defendant, the plaintiff was to

stand on his own legs and prove his case by adducing convincing,

cogent and incontrovertible evidence.

9. The learned counsel for the respondent/decree-holder

refutes and controverts the arguments advanced by the learned

counsel for the appellant. He submits that the impugned

judgment and decree is unexceptional. It was based on oral as

well as documentary evidence and that the appellant has failed to

point out any misreading or non-reading of the evidence on the

part of the learned trial Court. Lastly, it was argued by him that

under section 118 of the Negotiable Instruments Act, 1881, the

Court could raise the presumption that the cheque was issued

against consideration.

10. I have heard the learned counsel for the parties and perused

the record with their assistance.

11. From a perusal of the record, it is crystal clear that despite

availing of several opportunities, the appellant did not produce

any evidence in support of the stand taken by him in the written

statement. His evidence was not present on 15.3.2011, 24.3.2011,

7.4.2011, 15.4.2011, 23.4.2011, 28.4.2011 and 9.5.2011. Time

and again, a warning was sounded to him that he was being

provided the last opportunity to produce evidence, but he did not

W.P.No.198-2011 5

take the matter seriously. His approach remained casual and

flippant. He has only himself to blame. It goes without saying

that justice is to be tempered with mercy and the parties are to be

provided an adequate opportunity to establish their respective

cases. But it does not mean that they are to be allowed to regulate

the proceedings of the Court or the Courts are to be left at their

mercy. If the proceedings are to be concluded expeditiously in

the given case, the Courts concerned would have to take

extraordinary measures to curb the tendency of seeking

adjournment after adjournment and that too without any just and

reasonable cause. I find no illegality or material irregularity to

have been committed by the learned trial Court in its order dated

9.5.2011 by which the evidence of the respondent was closed.

12. In the absence of any evidence in rebuttal, the learned trial

Court was left with the evidence produced by the plaintiff/decree-

holder. Since the defendant had not denied the issuance of the

cheque in question to the plaintiff, the onus to prove Exh.P.1

(Cheque No.A-4793389) was not so heavy on the plaintiff. He

succeeded in discharging the onus put on him. The plaintiff not

only himself appeared in support of his case but he also produced

two other witnesses in whose presence money was borrowed by

the appellant/defendant and the appellant had handed over the

cheque in question to the plaintiff/decree-holder. In cross-

examination, they held their ground and did not budge an inch
W.P.No.198-2011 6

from their stance. Their testimonies were consistent on all

material aspects of the case. In short, their depositions could not

be shattered and nothing favourable to the appellant/defendant

could be elicited from them in the course of cross-examination.

13. As noted in paragraph No.3 above, leave to defend was

granted to the appellant on 20.1.2001 pursuant to a statement

made by the learned counsel for the plaintiff/decree-holder. This

indicated the trust the plaintiff has had in his cause. Furthermore,

under section 118 of the Negotiable Instruments Act, 1881, the

Court is to presume that the cheque was made out and drawn

against consideration. No doubt, this presumption is rebutable,

but unless this presumption is rebutted by leading cogent,

convincing and confidence-inspiring evidence, the Court might

place implicit reliance upon the negotiable instrument, on the

basis of which the suit was filed.

14. In the case of “Muhammad Akhtar v. Zahar

Khan”(2006 CLD 737), this Court held as under:

“It is settled principle of law that under section 118 of

Negotiable Instruments Act, 1881, there is an initial
presumption that negotiable instrument is made, drawn,
accepted and endorsed for consideration although this
presumption is rebutable yet it is settled law that the onus is
on the person denying consideration to allege and prove the
same as the law declared by the Honourable Supreme Court
W.P.No.198-2011 7

while interpreting aforesaid provision of law in Haji

Karim’s case 1973 SCMR 100.”

15. In the case of “Muhammad Arshad and another v.

Citibank N.A., Lahore”(2006 SCMR 1347), the Honourable

Supreme Court of Pakistan laid down that:

“The learned Advocate Supreme Court on behalf of

petitioners has ignored the fact that “person signing and
delivering to another a paper stamped in accordance with
law relating to stamp duty chargeable on negotiable
instruments either wholly blank or having written thereon
and incomplete negotiable instrument so that it may be
made or completed into a negotiable instrument, prima
facie authorizes recipient of such negotiable instrument to
fill in required particulars. Presumption, held, would arise
under section 188(b) regarding a negotiable instrument
bearing a data as having been made or drawn on such date”.
National Commercial Bank Ltd. v. Muhammad Younus
Butt 1980 CLC 90. We are conscious of the fact that “party
to proceedings could discharge burden of proof placed
upon him under provisions of section 118 of Negotiable
Instruments Act, 1881 either by producing definite
evidence showing that consideration had not been passed or
by relying upon facts and circumstances of case and also by
referring to flaws in evidence of plaintiff and then
contending that presumption had been rebutted”. Chandan
Lal v. Messrs Amin Chand Mohan Lal AIR 1960 Punjab
500; Sundar Singh v. Khushi Ram AIR 1927 Lahore, 864
which could not be done.”
W.P.No.198-2011 8

16. In the case of “Muhammad Azizur Rehman v. Liaqat

Ali”(2007 SCMR 1820), the august Supreme Court of Pakistan

elaborated the provisions of Section 1128 of the Negotiable

Instruments, 1881 as follows:

“8. Similarly in the case of Haji Karim and another v.

Zakir Abdullah 1973 SCMR 100 this Court held that:--

“Under section 118 of the Negotiable Instruments

Act, 1881, there is an initial presumption that a
negotiable instrument is made, drawn, accepted or
endorsed for consideration. Although this
presumption is a rebuttable presumption, yet the onus
is on the person denying consideration to allege and
prove the same.”

10.(sic) In view of above discussion, we are of the view that

burden of proof of non-payment of consideration where
execution of a negotiable instrument was admitted would
be upon executant of document in which
appellant/defendant has failed.”

17. The above statement of law found echo in the following

judgments of Lahore High Court and Sindh High Court:

“i. Azhar Hussain v. Muhammad Iqabal(2003 CLD 521

Lahore).
ii. Muhammad Ajmal Khan v. United Bank
Limited(2004 CLD 1577 Lahore)
iii. Messrs Mach Knitters (pvt.) Limited and 3 others v.
Allied Bank of Pakistan Limited through
Manager(2004 CLD 535).
W.P.No.198-2011 9

iv. Shell Pakistan Ltd. through Attorney v. AERO Asia

International (Pvt.) Limited through Chief Executive
and another(2008 CLD 996 Karachi)
v. Muhammad Adnan (Muhammad Irfan) v. Additional
District Judge Hafizabad and another(2013 CLD 25
Lahore).
vi. Pak Petrochemical Industries (Pvt). Limited through
Chief Executive v. Syed Hamid Ali(2014 CLC 837).
vii. Shell Pakistan Ltd. through Attorney v. AERO Asia
International Private Limited through Chief
Executive and another(PLD 2008 Karachi 429).
viii. Pak Petrochemical Industries (Pvt). Limited through
Chief Executive v. Syed Hamid Ali(2014 CLD 519
Sindh).
ix. Sardar Ali Muhammad Khan v. Muhammad
Ayyub(2014 CLD 193).”
20. It bears repeating that in the instant case, the defendant

failed to rebut the statutory presumption raised under section 118

of the Negotiable Instruments Act, 1881 in that he did not lead

evidence in disproof of the assertions made in the plaint, and

proved by the plaintiff by adducing evidence.

21. It is well-established law that civil and criminal proceedings

might be carried out simultaneously. Therefore, if the decree-holder

has got case FIR No.122-2007 registered against the appellant on the

basis of the cheque in question, the proceedings therein were to be

conducted on its own merits. But the very registration of the case was

no ground to stop the proceedings in the civil suit instituted by the

respondent.

22. Since the appellant has not pointed out any specific portion of

the testimony of any of the witnesses produced by the decree-holder,

which was either read out of context or misread or not read at all to
 W.P.No.198-2011 10

the disadvantage of the appellant, the findings recorded by the learned

trial Court cannot be interfered with, especially when the conclusions

drawn by it are quite in accord with the evidence and the

circumstances of the case. Resultantly, the findings recorded by the

learned trial Court on all the issues are upheld.

23. For what has been stated above, this appeal being devoid of

merits is hereby dismissed. There is no order as to costs.

(MAHMOOD AHMAD BHATTI)

JUDGE
Approved for reporting

JUDGE

Rana Zahid Bashir*

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