IN THE HIGH COURT OF SINDH, KARACHI

Ist Appeal No.97 of 2021

[ Muhammad Ahmed Vs. Saud-Ur-Rehman ]

PRESENT:

Mr. Justice Arshad Hussain Khan

Mr. Justice Amjad Ali Sahito

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Appellant	Through Mr. Abdul Qadir Anwer, Advocate
Respondent	Nemo
Date of Hearing:	31.03.2026
Date of Decision:	31.03.2026

JUDGMENT

ARSHAD HUSSAIN KHAN, J: The appellant through present 1st Appeal under Section 96 of CPC has challenged judgment and decree dated 07.09.2021 passed by the Court of Xth Additional District Judge, Karachi-East in Summary Suit No.05 of 2020 whereby the Suit filed by the appellant for recovery of Rs. 8,000,000/- (Rupees Eight Million only) was dismissed.

2. Briefly, the facts giving rise to the present appeal are that the appellant/plaintiff and respondent/defendant are relatives. The respondent, engaged in the business of electronic goods, persuaded the appellant to invest amount on the assurance of short-term returns and security of the principal amount. Pursuant thereto, a “Partnership Agreement” dated 25.07.2019 was executed, whereunder the appellant invested the amount for a period of 2½ months. In terms thereof, the respondent issued four post-dated cheques of 05.10.2019, each for Rs.20,00,000/-, drawn on Meezan Bank, aggregating to Rs.80,00,000/-. Upon presentation, the cheques were dishonoured on account of insufficient funds. Consequently, the appellant instituted a summary suit for recovery of Rs.80,00,000/- along with markup. Despite service, the respondent failed to appear or seek leave to defend and was proceeded ex-parte. The appellant led ex-parte evidence; however, the learned trial Court, vide judgment dated 07.09.2021, dismissed the suit for want of confidence-inspiring evidence. The said judgment is impugned in the present appeal.

3. The record reflects that despite notices through all modes, including publication, none has appeared on behalf of the respondent. Considering that this is an old matter, this Court deems it appropriate to proceed with the case.

4. Learned counsel for the appellant, while reiterating the contents of the memo of appeal, contends that the impugned judgment and decree are unsustainable in law and on facts, as the learned trial Court failed to apply its judicious mind and to properly appreciate the evidence on record. It is submitted that the suit was instituted under Order XXXVII, C.P.C. Rule 2 on the basis of negotiable instruments, i.e., four dishonoured cheques, which constitute an unconditional undertaking within the meaning of the Negotiable Instruments Act, 1881, and, therefore, no further corroborative evidence was required. It is further contended that the learned trial Court erred in placing reliance upon ancillary/photocopy documents while disregarding the primary evidence, namely the original cheques issued by the respondent, which were dishonoured. It is urged that the trial Court misdirected itself in law by treating such secondary evidence as determinative, while ignoring the legal effect and evidentiary value of the negotiable instruments forming the basis of the suit. Lastly, it is, prayed that the impugned judgment and decree be set aside and the suit of the appellant be decreed.

5. Heard learned counsel for the appellant and perused the material available on record.

6. From the record, it appears that despite service of notices, the respondent failed to appear before the learned trial Court and contest the matter, whereupon he was proceeded against ex-parte. The appellant/plaintiff was directed to lead evidence by way of affidavit to substantiate his claim. The record further reflects that although the respondent remained ex-parte, the learned trial Court, being mindful of its duty, carefully examined the evidence produced by the appellant. It was observed that the principal document relied upon, namely the “Partnership Agreement”, was neither attested by any witness nor was its original produced; hence, the same was not accepted as authentic in terms of the Qanun-e-Shahadat Order, 1984. Furthermore, the subject cheques were not issued in the name of the appellant/plaintiff, but were bearer instruments for withdrawal of cash. In these circumstances, the learned trial Court held that the appellant failed to establish his claim, except to the extent of dishonour of cheques, which by itself was insufficient to prove entitlement to recovery. Consequently, the suit, being devoid of merit, was dismissed.

7. The contention of the learned counsel that the suit was based on negotiable instruments and therefore, required no further corroboration, is misconceived. It is settled law that even in a summary suit under Order XXXVII, C.P.C., the plaintiff must establishes the existence of a legally enforceable liability in accordance with law. Mere production or dishonour of cheques, by itself, does not ipso facto entitle a plaintiff to a decree, unless the underlying transaction is duly proved. In the present case, the learned trial Court has rightly observed that the principal document relied upon by the appellant, namely the “Partnership Agreement”, was neither proved in accordance with the provisions of the Qanun-e-Shahadat Order, 1984, nor supported by any attesting witness, and even the original thereof was not produced. In absence of proof of the foundational transaction, the negotiable instruments alone could not establish the claim of the appellant.

8. As regards the contention that the learned trial Court erroneously relied upon secondary/photocopy evidence, the same is devoid of substance. A perusal of the impugned judgment reflects that the learned trial Court has not based its findings upon such documents, rather it declined to place reliance upon them due to lack of proper proof. At the same time, the Court has examined the evidentiary value of the cheques and rightly held that the same were not issued in the name of the appellant and did not, in the circumstances, conclusively establish liability.

9. Admittedly, the respondent remained ex-parte before the learned trial Court. However, it is settled law that even in ex-parte proceedings, the appellant was required to prove his case on the strength of his own evidence, and cannot succeed merely on account of absence of the respondent/defendant. The learned trial Court, despite the respondent being ex-parte, has carefully examined the evidence and recorded cogent reasons for disbelieving the appellant’s case. No misreading or non-reading of evidence, nor any jurisdictional defect, has been pointed out which warrant interference by this Court in appellate jurisdiction.

10. In view of the foregoing, the appellant has failed to make out any case for interference. The impugned judgment and decree are well-reasoned and based on proper appreciation of the material available on record. Consequently, the instant appeal, being devoid of merit, is hereby dismissed with no order as to costs.

JUDGE

Naveed PA