IN THE HIGH COURT OF SINDH, KARACHI

Ist Appeal No.113 of 2023

[ Raja Parmanand v. Shamsher ]

PRESENT:

Mr. Justice Arshad Hussain Khan

Mr. Justice Amjad Ali Sahito

*************

Appellant Through Mr. Muhammad Awais Bughio, Advocate.

Date of hearing 11.05.2026

Date of Decision 11.05.2026

O R D E R

ARSHAD HUSSAIN KHAN, J: This First Appeal is directed against the judgment and decree dated 15.11.2023 and 22.11.2023 respectively, passed by the learned VIIth Additional District Judge (Model Civil Appellate Court), Karachi South, in Summary Suit No.93 of 2021 whereby the learned Trial Court dismissed the appellant’s suit filed under Order XXXVII Rule 2 CPC for the recovery of Rs.25,00,000/- (Rupees Twenty-Five Lacs only), on the basis of a purportedly dishonored cheque, with no order as to costs.

2. The brief facts, as borne out from the record, are that the appellant/plaintiff claimed to have business relations with the respondent/defendant in connection with dealings relating to real estate and commodities, including seeds, wheat, rice, etc. According to the appellant, on 05.11.2020 the respondent borrowed a cash amount of Rs.25,00,000/- for business purposes in the presence of witnesses, whereafter an Iqrarnama acknowledging the said liability was allegedly executed on non-judicial stamp paper bearing No.S310299 dated 05.11.2020. It was further alleged that, towards discharge of the aforesaid liability, the respondent issued Cheque No.84378327 dated 15.02.2021 for an amount of Rs.25,00,000/-. However, upon presentation, the said cheque was dishonoured and returned unpaid by the bank on 02.03.2021. Consequently, the appellant initiated criminal proceedings under Section 489-F P.P.C. by lodging F.I.R. No.52 of 2021 and also instituted the underlying summary suit for recovery of the said amount. The respondent, after obtaining leave to defend, filed written statement and denied the claim of the appellant, asserting that the cheque as well as the alleged Iqrarnama were fabricated documents and that no such loan transaction had ever taken place between the parties. Thereafter, the learned trial Court framed issues, recorded evidence of the parties, and, after hearing learned counsel for the parties, dismissed the suit vide judgment dated 15.11.2023 and decree dated 22.11.2023. The appellant has impugned the said judgment and decree through the present appeal.

3. Learned counsel for the appellant contended that the impugned judgment is the result of grave misreading and non-reading of the evidence available on record. He primarily argued that the impugned judgment is unsustainable in law, as the learned trial Court failed to written findings on each issue separately, thereby not conforming to the mandatory requirements of Order XX Rule 5 C.P.C. It was further contended that the learned trial Court failed to appreciate that the respondent had admitted longstanding business and family relations with the appellant, which furnished a natural and plausible basis for advancement of the alleged loan. Learned counsel submitted that once the Iqrarnama and the cheque in question were brought on record, a strong legal presumption arose in favour of the appellant, which, according to him, the respondent failed to rebut through any independent or reliable evidence. He also assailed the approach adopted by the learned trial Court in comparing the disputed signatures with the naked eye, contending that such comparison was legally unsafe and unreliable. According to learned counsel, the signatures ought to have been referred to a handwriting expert or forensic laboratory for proper examination, and failure to do so deprived the appellant of a fair opportunity to prove his case, thereby offending the principles of natural justice. Learned counsel further argued that the learned trial Court attached undue significance to the existence of prior litigation between the parties and based its findings upon conjectures and surmises rather than the actual evidence available on record. Lastly, he prayed that the impugned judgment and decree be set aside. Learned counsel has relied upon the case of Najaf Iqbal v. Shahzad Fafique [2020 SCMR 1621], Pakistan Refinery Ltd., Karachi v. Barrett Hodgson Pakistan (Pvt) Ltd., and others [2019 SCMR 1726], Mirza Abdul Sattar Baig and others v. Pakistan Railway through Divisional superintendent, Karachi and others [2016 CLC 1931], Rehmatullah Khan and another v. Ghulam Farid and others [2009 SCMR 371] and Haji Abdul Jalil v. Anjuman Jame Masjid Haquani [1996 MLD 818].

4. We have heard learned counsel for the appellant and carefully perused the material available on record coupled with the findings of the learned Trial Court.

5. Since learned counsel for the appellant has laid considerable emphasis upon the legal objection that the impugned judgment is unsustainable in law for non-compliance with the requirements of Order XX Rule 5 C.P.C., we deem it appropriate to address this contention at the very outset. From the record, it appears that the learned trial Court, on the basis of divergent pleadings of the parties, framed the following issues: (i) whether the defendant is liable to pay the amount claimed by the plaintiff; (ii) whether the defendant had issued the alleged cheque which was dishonoured upon presentation; (iii) whether the plaintiff is entitled to the relief claimed; and (iv) what should the decree be.

The record further reflects that the learned trial Court, while remaining mindful of the requirement of Order XX Rule 5 C.P.C., assigned reasons for taking up the issues together on the ground that the same were interconnected and interlinked with each other. We have also examined the issues framed by the learned trial Court and are of the view that issue No.(i), relating to the liability of the defendant to pay the claimed amount, and issue No.(ii), concerning issuance and dishonour of the cheque, were foundational questions, the determination whereof directly governed issue No.(iii) regarding entitlement of the plaintiff to relief, while the cumulative effect of such findings necessarily culminated in issue No.(iv) pertaining to the nature of the decree to be passed. In such circumstances, where the issues were intrinsically connected and dependent upon common appreciation of evidence, the learned trial Court rightly considered and decided them together. Mere absence of separately captioned findings on each issue does not, in the facts of the present case, render the impugned judgment illegal or violative of Order XX Rule 5 C.P.C., particularly when the reasoning of the Court sufficiently addresses all material controversies between the parties.

6. Insofar as the merits of the case are concerned, we are of the considered view that although Section 118 of the Negotiable Instruments Act gives rise to a presumption that a cheque has been issued for consideration, such presumption is not absolute in nature. The same is rebuttable and, once the foundational facts surrounding the transaction are seriously disputed, the burden shifts back upon the plaintiff to establish the underlying liability through cogent and confidence-inspiring evidence. It is a settled principle that even in proceedings under Order XXXVII C.P.C., the plaintiff must establish a claim which is free from reasonable doubt and supported by reliable material. Mere production of a disputed cheque, without satisfactorily proving the underlying consideration or the financial capacity to advance such amount, cannot by itself form the basis for a decree. In the present case, the respondent succeeded in creating serious doubt regarding the existence of the alleged debt. The record reflects that prior to the alleged transaction, the parties were already embroiled in hostile litigation, including criminal and defamation proceedings. In such circumstances, it appears highly improbable and contrary to ordinary human conduct, as well as the standard of a prudent person, that a substantial cash amount of Rs.25,00,000/- would be advanced to an adversary without any secure, formal, or verifiable banking arrangement.

7. Besides the above, a fundamental weakness in the appellant’s case is his failure to establish the source of the alleged loan amount. During cross-examination, the appellant disclosed that his monthly income was approximately between Rs.80,000/- to Rs.100,000/-. Despite such declared income, the appellant failed to produce any bank statement, withdrawal slip, or other documentary material to demonstrate how an amount of Rs.25,00,000/- was arranged and advanced in liquid cash. The improbability of consolidating such a substantial amount in cash, particularly in light of the appellant’s disclosed financial capacity, seriously undermines the credibility of the alleged transaction. It is a settled principle that Courts cannot pass a decree for recovery on the basis of speculative assertions unsupported by reliable financial evidence. Moreover, the record is completely silent regarding the denomination of currency allegedly paid or any verifiable monetary trail relating to the transaction. The absence of such particulars renders the alleged advancement of the amount highly doubtful, suspicious, and legally unsubstantiated.

8. The appellant’s grievance regarding the “naked eye” comparison of the disputed signatures is legally misconceived and unsustainable. Article 84 of the Qanun-e-Shahadat Order, 1984 expressly empowers the Court to compare a disputed signature, writing, or seal with signatures or writings admitted or otherwise proved to the satisfaction of the Court. It is by now a settled principle that the opinion of a handwriting expert is merely advisory and corroborative in nature and does not constitute a mandatory prerequisite for recording a judicial finding regarding disputed signatures. Therefore, the learned trial Court, in exercising its own judicial assessment while examining the physical features and characteristics of the signatures, acted well within the scope of its lawful jurisdiction and competence. Moreover, the record reveals a material procedural omission on the part of the appellant himself. If the appellant genuinely considered forensic examination indispensable for adjudication of the dispute, it was incumbent upon him to move an appropriate application before the learned trial Court seeking referral of the disputed signatures to a handwriting expert or forensic laboratory. Having failed to avail such remedy at the trial stage, the appellant cannot now, at the appellate stage, invoke the principles of natural justice in an attempt to fill lacunae in his own evidence.

9. Furthermore, even in proceedings arising out of a summary suit under Order XXXVII C.P.C., the plaintiff is required to establish a claim that is clear, confidence-inspiring, and free from reasonable doubt. In the present case, the appellant essentially rested his claim upon mere possession of a cheque, the authenticity whereof was seriously disputed by the respondent, while the underlying consideration was never satisfactorily established through independent and reliable evidence. This Court finds that the learned trial Court did not dismiss the suit on the basis of conjectures or surmises; rather, the dismissal was founded upon a logical and judicial assessment of the evidence available on record, coupled with the surrounding circumstances, including the admitted hostility and prior litigation between the parties, which rendered the appellant’s version highly improbable and untrustworthy.

10. As regards the case law cited by learned counsel for the appellant, the authorities are distinguishable on facts and do not advance his case. The principles laid down therein pertain to situations where the underlying transaction was supported by credible and consistent evidence, which is lacking in the present matter. Accordingly, the cited precedents are of no assistance to the appellant.

11. In view of the foregoing discussion, we are of the considered opinion that the learned trial Court has properly and meticulously appreciated the evidence available on record and arrived at a sound and logical conclusion. The appellant has failed to establish a claim possessing the degree of certainty, transparency, and evidentiary support required for grant of a decree in a summary suit. We do not find that the findings recorded by the learned trial Court suffer from any illegality, misreading or non-reading of evidence, material irregularity, or jurisdictional infirmity warranting interference by this Court in exercise of appellate jurisdiction.

Consequently, the instant appeal, being devoid of merit, is hereby dismissed, and the impugned judgment dated 15.11.2023 and decree dated 22.11.2023 passed by the learned VIIth Additional District Judge, Karachi South, are maintained.

JUDGE

Naveed PA