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IN THE ISLAMABAD HIGH COURT,

ISLAMABAD

R.F.A No._______/2014

Akhtar Nawaz S/o Muhammad Nawaz R/o House No.B-10/6, T&T

Colony, G-8/4, Islamabad.
…Appellant
Vs.
1. Khadim Hussain Chaudhry S/o Ch. Muhammad Hussain
2. Ummarah Haris W/O Muhammad Haris Qamar
Both residents of House No.275, Street No.55, Sector F-11/4,
Islamabad.

… Respondents

APPEAL UNDER SECTION 96 CPC AGAINST

JUDGMENT AND DECREE DATED 16-06-2014
PASSED BY MISS RAKHSHANDA SHAHEEN,
ADDITIONAL DISTRICT JUDGE ISLAMABAD-WEST
WHEREBY SHE HAS DECREED THE SUIT OF THE
RESPONDENTS.

Claim in Appeal:

Acceptance of appeal, setting aside of impugned judgment and

decree dated 16-06-2014 and dismissal of the suit of
respondents.

BRIEF FACTS:

1. That the respondents filed a suit for recovery of

Rs.7,43,000/- against the appellant, on the basis of five

Continued…
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cheques out of which one was in the name of respondent

No.2, one in the name of “cash” and others were in the

name of respondent No.1.

2. That the appellant filed application for permission to

appear and defend the suit, which was allowed subject to

furnishing surety bond. The appellant submitted the surety

bond and also contested the suit by filing written

statement, by raising several legal as well as factual

objections, as to maintainability, lack of cause of action ,

mis-joinder of cause of action, jurisdiction, and non

existence of liability etc and learned trial court out of

divergent pleadings of the parties framed the following

ISSUES:

i. Whether there was business deal between the

parties and defendant used the vehicles of the

plaintiff and misappropriated the amounts of Rs.

7,43,000/-? OPP

ii. Whether the defendant issued the disputed

cheque for payment of the above referred amount

and for fulfilling the obligation? OPP

iii. Whether the cheques were issued dishonestly

and the same were dishonored, therefore, the suit is

liable to be decreed? OPP

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iv. Whether the suit is not maintainable due to

misjoinder of causes of action? OPD

v. Whether the agreement was executed between

the plaintiff No.1 and defendant and plaintiff No.2

is an alien to the transaction and that the cheques

were issued as security and not for fulfilling and

obligation? OPD

vi. Whether the suit is frivolous and vexatious and

is liable to be dismissed with special costs u/s35-A

CPC as it does not disclose any cause of action?

OPD

vii. Relief

3. That the respondent No.1 himself appeared as PW-1 and

submitted special power of attorney Ex-PA of respondent

No.2 and copy of FIR mark A. In documentary evidence

copy Cheque No.9499111 Ex-P1, copies of its dishonor

slips Ex-P2, Ex-P3and Ex-P4, copy of cheque No.

6794574 Ex-P5, copy of its dishonor slip Ex-P6 , copy of

Cheque No. 6794572 Ex-P7, copy of its dishonor slip Ex-

P8, copy of Cheque No. 6794573 Ex-P9, copy of its

dishonor slip Ex-P10, copy of cheque No.9499104 Ex-

P11and copy of its dishonor slip Ex-P12 were produced

in the statement of counsel, which was objected by the

appellant. On the other hand appellant himself appeared

as DW-1 and disproved the assertions of the respondents.

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4. That the learned trial court after hearing the parties

decreed the suit of the respondents as prayed for vide

judgment and decree dated 16-06-2014, being aggrieved

there from the appellant prefers instant appeal inter alia

on the following

GROUNDS:

i. That the impugned judgment and decree is against law

and facts, hence not sustainable thus liable to be set aside.

ii. That the trial court neither addressed nor taken into

consideration the following legal objection raised during

arguments:-

 Whether a joint suit on the basis of different

cheques by different plaintiffs is maintainable?

 Whether a decree for recovery can be granted on

the basis of cheque which was not presented with in

six month?

 Whether a suit under Order XXXVII can be filed

and decree can be granted on the basis of a cross

cheque not bearing the name of the plaintiff?

 Whether cheque and dishonor slip can be produced

in evidence in the statement of counsel?

 Whether a dishonor slip can be proved in evidence

without calling its author/banker?

Continued…
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iii. That the findings of learned trial court on issue no.4 are

not only perverse to the record but also based on wrong

application of law. Order 2 Rule 3 CPC deals with mis-

joinder of causes of action which have been ignored by

the trial court. The Pw1 has himself admitted in cross

examination that the plaintiffs have neither owned any

joint account nor they have any joint agreement with the

defendant, therefore, the plaintiffs have been precluded

from bringing and maintain a joint suit. Even Order 1

Rule 1 CPC also does not permit the filling of suit so

framed as in case in hand.

iv. That the learned trial court has ignored the fact that the

cheque, copy of which has been produced as Ex-P11,

does not bear the name of any plaintiff. The bare perusal

of Ex-P11 & Ex-P12 shows that the cheque dated 11-01-

2009 was presented on 09-02-2010 i-e after laps of six

months. Ex-P12 also indicates that cheque was returned

with the remarks out of date along with remarks different

in signatures but the learned trial court has misread the

evidence and failed to apply the law thus arrived at

incorrect conclusion, resulting into miscarriage of justice.

v. That it is settled law the cheque as well as dishonor slip

are not per see admissible in evidence but the

plaintiffs/respondents presented Ex-P1 to Ex-P12 in the

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statement of the counsel which was objected by the

appellant and decision on objection was reserved and was

ordered to be decided at the time of final judgment but

this objection has not been decided in the impugned

judgment & decree.

vi. That mere production of dishonor slip does not sufficient

to prove the fact of dishonor until and unless its

author/banker is called as witness to prove the slip. The

plaintiffs neither examined the banker nor has appellant

been given opportunity of cross examination upon Ex-P1

to Ex-p12.

vii. That no evidence what so ever has been produced by the

plaintiffs/respondents to prove issue No.1&2 and issue

No.3 being dependent upon issue No.1&2 are also not

stand proved, therefore, the findings of learned trial court

upon these issues are against law and facts.

viii. That the portion of cross examination of Dw-1 referred to

by the trial court in impugned judgment & decree do not

absolve the legal objection raised on behalf of the

appellant. The Dw1 has categorically denied his signature

upon Ex-P11 and plaintiffs/respondents were under an

obligation to prove its issuance by the defendant and his

signature for which they have badly failed.

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ix. That the issue No.1&5 are interlinked but learned trial

court despite contradictory stances of the plaintiffs has

decided in their favor.

x. That the learned trial court, it is respectfully submitted,

has failed to state its finding on each and every issue

separately thus violated the mandatory provisions of rule

5 of Order 20 CPC.

xi. That the impugned judgment and decree is the result of

mis reading and non reading of the evidence.

xii. That the learned trial court has acted with material

irregularity which amounts to illegality while passing

impugned judgment and decree. The learned trial court, it

is respectfully submitted, has wrongly exercised the

jurisdiction vested in it.

xiii. That the learned trial court, it is respectfully submitted,

has passed the impugned judgment and decree in a slip

shod manner without proper application of judicial mind.

The impugned judgment and decree is sketchy and non

speaking hence liable to be set aside.

Continued…
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xiv. That appellant is entitled for acceptance of appeal, setting

aside of impugned judgment and decree dated 16-06-

2014, and dismissal of the suit.

It is therefore respectfully prayed that this Honourable Court

may very graciously be pleased to accept the appeal, set aside the

impugned judgment and decree dated 16-06-2014and dismiss the suit ,

according to law and facts of the case.

Any other relief which this Honourable Court may deem fit may

also be awarded.

Appellant

Through

CH. ABDUL RAHMAN BAJWA

ADVOCATE HIGH COURT
203-Shaheed-e-Millat Block
F-8 Markaz Islamabad
0300-9823363
Certificate

Certified that this is the first appeal being filed against the

impugned judgment and decree dated 16.06.2014 in this

Honourable Court as per information furnished by the

appellant.

Counsel

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IN THE ISLAMABAD HIGH COURT,

ISLAMABAD

CM No._______/2014
IN
R.F.A No._______/2014

Akhtar Nawaz Vs. Khadim Hussain

APPEAL UNDER SECTION 96 CPC

APPLICATION UNDER ORDER XLI RULE 5 CPC

READ WITH SECTION 151 CPC

Respectfully Sheweth:

1. That the applicant has filed the above mentioned appeal

before this Honourable Court, contents of which may kindly
be read in support of this application.

2. That the applicant has a good prima facie case and hopes to
succeed in it.

3. That the balance of convenience lies in favor of the applicant

and against the respondent.

4. That if the operation of impugned judgment& decree dated

16-06-2014 is not suspended the applicant shall suffer an
irreparable loss.

It is, therefore, respectfully prayed that this Honoruable

Court may very graciously be pleased to accept the application and
suspend the operation of judgment and decree dated 16-06-2014
till final disposal of main appeal in the interest of justice.

Applicant

Through

Ch. Abdul Rehman Bajwa

Advocate High Court

Continued…
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IN THE ISLAMABAD HIGH COURT,

ISLAMABAD

CM No._______/2014
IN
R.F.A No._______/2014

Akhtar Nawaz Vs. Khadim Hussain

APPEAL UNDER SECTION 96 CPC

APPLICATION UNDER ORDER XLI RULE 5 CPC

READ WITH SECTION 151 CPC

AFFIDAVIT

I, Akhtar Nawaz S/o Muhammad Nawaz R/o House No.B-

10/6, T&T Colony, G-8/4, Islamabad do hereby solemnly affirm
and declare as under:

That the contents of the attached application are true and

correct to the best of my knowledge and belief and nothing
has been concealed or withheld.

Deponent
Verified:

Verified that the contents of the above affidavit are true and correct
to the best of my knowledge and belief and nothing has been
suppressed or withheld.

DEPONENT

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IN THE ISLAMABAD HIGH COURT,

ISLAMABAD

R.F.A No._______/2014

Akhtar Nawaz Vs. Khadim Hussain

APPEAL UNDER SECTION 96 CPC

INDEX
S.# Description Pages
Memo of Appeal
1
2 Copies of impugned judgment

and decree dated 16-06-2014

3 Stay application with Affidavit

4 Vakalatnama

Appellant

Through
CH. ABDUL REHMAN BAJWA
Advocate High Court
03009823363

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IN THE ISLAMABAD HIGH COURT,

ISLAMABAD

R.F.A No._______/2014

Akhtar Nawaz Vs. Khadim Hussain etc

APPEAL UNDER SECTION 96 CPC

Appellant

Through
CH. ABDUL REHMAN BAJWA
Advocate High Court
03009823363

Continued…