IN THE HIGH COURT OF SINDH,
CIRCUIT COURT, HYDERABAD.
1st Appeal No.13 of 2010
Date of hearing: 19.12.2014.
Date of judgment: 12.02.2015.
Mr. Faraz Ahmed Chandio, Advocate for appellant
Respondent No.1 Wali Khan, in person.
J U D G M E N T
SALAHUDDIN PANHWAR, J: Through instant Appeal the appellant has assailed the legality of judgment and decree dated 26.4.2010, passed by learned 1st Additional District Judge, Badin in Summary Suit No.01 of 2009 “Re-Wali Khan V. Muhammad Ameen’ whereby suit of the plaintiff / respondent was decreed.
2. A brief reference of the facts is that plaintiff / respondent filed a Summary Suit against the defendant / appellant wherein claiming that he is a shop-keeper and deals in Electronic appliances. On 10.5.2007 appellant / defendant purchased electronic articles amounting to Rs.240,000/- on credit to be paid within 12 months. Such agreement was executed and defendant / appellant also issued post dated cheque amounting to Rs.230,000/- and Rs.10,000/- in cash. Plaintiff / respondent No.1 further pleaded that defendant / appellant issued two cheques for Rs.60,000/- and Rs.40,000/- but both were dishonoured so he lodged an FIR No.177 of 2008 U/s 489-F, 420,34 PPC with PS Matli and then filed Summary Suit for recovery of the Rs.230,000/-
3. In response to process, the appellant / defendant appeared; sought leave to defend the suit wherein denying averments of plaint and pleading that he had purchased some articles on credit amounting to Rs.30,000/- and issued a cheque of Rs.30,000/- which he written in figure and then same was tampered.
4. Out of the pleadings, the learned trial court struck the following Issues:-
1.Whether the defendant took articles (mentioned in annexure”A/1”) worth of Rs.240,000/- on credit from plaintiff and executed an agreement in favour of plaintiff in presence of two attesting witnesses?
2. Whether the defendant issued a cheque No.969103 dated 11.9.2008 of his account No.1157-3 of Muslim Commercial Bank Limited, amounting to Rs.230,000/- to the plaintiff and the same has been dishonoured due to non-availability of cash?
3. Whether the cheque was issued for amount of thirty thousand only and plaintiff has added the figure and word two (2) in it?
4. Whether the defendant is liable to pay an amount of Rs.230,000/- to the plaintiff?
5. Whether the suit is maintainable in law?
6. Whether the plaintiff is entitled for the relief claimed?
7. What should the decree be?
5. In order to prove the case, the plaintiff / respondent examined himself; produced agreement; agreement form, cheque of Rs.230,000/- alongwith memo , cheque for Rs.60,000/- alongwith memo; Shah Wali and Mujahid were also examined by plaintiff / respondent and then side was closed.
6. On the other hand, the appellant / defendant examined himself and closed his side. On conclusion of the trial, the learned trial Court judge decreed the suit vide judgment and decree dated 26.4.2010 which, the present appellant / defendant challenged as Civil appeal No.13 of 2010.
7. Learned counsel for the appellant / defendant No.1, inter alia, argued that the suit of the plaintiff / respondent was not maintainable and learned lower court wrongly admitted the suit Under Order 37 of the Code although the cause, if any, was one of regular suit. In support of his such plea he has relied upon the case laws, reported as 2007 MLS 1215, 2005 CLC 1751, 2014 CLC 1063 and 2012 CLC 1679. He also come forward with another plea that since material issue was not framed by the learned lower court which materially prejudiced the appellant / defendant hence judgment is not sustainable under the law. To insist his plea, the reliance is placed on the case laws reported as 2001 SCMR 772 and 2013 CLC 1371 and last he argued that the learned lower court erred while making appreciation of the evidence brought on record which resulted in drawing an incorrect conclusion i.e decreeing the suit of the plaintiff / respondent and in consequence whereof allowing execution application. In support of his such plea, reliance is placed on the case laws, reported as 2005 MLD 1954, PLD 2008 Quetta-1, 2005 MLD 1761, 2011 CLC 430 and 2014 CLC 1415.
8. The respondent, present in person, while arguing his own case, asserted that not only the suit was proper but all the subsequent event including judgment and order on execution application are well within four corners of law and procedure; no illegality has been committed by lower court; the appellant / defendant never question the jurisdiction of the lower court hence he is not legally justified to question the legality thereof. In support of his case he has placed reliance on the case laws, reported as 2011 CLC 191, 2005 MLD 1329 and 2005 SCMR 125.
9. At the very outset, I would like to make it clear here that though a negotiable instrument is always carries a presumption of its being an unconditional promise to pay the amount on demand or at fixed or determinable future time but by no imagination it can be believed that execution of a document (negotiable instrument) can be for any other purpose but to clear (pay-up) certain liability (consideration) though not need to be referred / mentioned in such a document. This position stands clear from the reading of the Section 118 of the Negotiable Instruments Act, 1881 (be referred hereinafter as ‘the Act’ ). The Section reads as under:-
118. Presumptions as to negotiable instrument of consideration.—Until the contrary is proved, the following presumptions shall be made:-
(a) of consideration; that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed negotiated or transferred , was accepted, endorsed, negotiated or transferred for consideration;
Though the presumption, referred in the Section 118 of the Act, is rebutable but once it prima facie appears that a document is qualifying the definition of ‘negotiable instrument’ the lis would require to be dealt within meaning of the provision of Order XXXVII of the CPC else the presumption, though rebutable, attached with ‘negotiable instrument’ shall loose its purpose.
10. In the instant matter, the respondent / appellant had filed the suit for recovery of the amount with reference to the ‘cheque’ and since a ‘cheque’ within meaning of the Section-6 of the Act has been defined as ‘bill of exchange’ therefore, plea of the learned counsel for the appellant / defendant that the suit should have been filed as ‘regular suit’ is not sustainable.
11. I would also like to make it clear that even if before execution of a ‘negotiable instrument’ the parties were under certain liabilities through some written agreement, this would not be sufficient to deprive one from resorting to course, provided by Order XXXVII of the Code if it is established that earlier liabilities were settled by execution of ‘negotiable instrument’. This is for simple reason that execution of the ‘negotiable instrument’ itself means to make an unconditional promise to pay a certain sum on demand or at certain future date to the holder which is always against some ‘consideration’ . If a contrary view is allowed to hold the field it would not only frustrate the purpose and object of ’the Act’ but shall also fail the object of Order XXXVII of the Code through which the law, at least, gives a hope for recovery of the amount in a ‘summary manner’. It, however, need not be mentioned that if other side succeed in bringing the document out of meaning of ‘negotiable instrument’ then proper course for the holder would be to file a ‘regular suit’ and proceedings under Order XXXVII of the Code which would not defeat the right of holder to establish his claim for recovery of amount in such ‘regular suit’.
12. In the instant matter, the claim of the respondent / plaintiff had been that appellant / respondent had taken certain articles from his shop worth Rs.240,00/- (Two lacs & forty thousands) under agreement, meant for such purpose and had paid Rs.10,000/- in cash while payment of remaining amount of Rs.230,000/- was to be made within 12 months (one year). Appellant / defendant also issued two post dated cheques of Rs.60,000/- and Rs.40,000/- respectively, which, however, were bounced so on subsequent approach of respondent / plaintiff the appellant / defendant issued the cheque in question for whole amount i.e Rs.230,000/- but it was also bounced so FIR was lodged against the appellant / defendant. The respondent / plaintiff produced all such three cheque (s) in original alongwith memo (s), issued by the Bank.
13. The above position makes it clear that respondent / plaintiff sticking with last cheque which seems to have been an unconditional promise to pay consideration (Rs.230,000/-), which were due against the appellant / defendant, for purchasing articles. Having issued such cheque, the appellant / defendant made the respondent / plaintiff to believe that he (holder) is possessing an unconditional promise of the appellant / defendant for payment of Rs.230,000/- on due date, so mentioned in the cheque, therefore, by no stretch of imagination the jurisdiction of lower court (Order XXXVII CPC) cannot be said to have been resorted illegally. Further, the rebutable burden was upon the appellant / defendant to have proved the document (cheque) to be not a ‘negotiable instrument’ wherein he failed. Thus, the plea of the learned counsel for the appellant / defendant with regard to jurisdiction of the lower court is not tenable.
14. Reverting to the merits of the case, the point of determination of the appeal in hand would be that:
‘whether the judgment of the learned trial court is legal or otherwise?
15. Per claim of the plaintiff / respondent, it stood clear that the respondent / plaintiff had claimed issuance of three cheque (s) to have been issued by the present appellant / defendant which he not only pleaded in his plaint but in his examination and even produced in evidence, in original. Further, the respondent / plaintiff also examined the witnesses of document (agreement) to prove which claim of the plaintiff / respondent finds support from subsequent events i.e issuance of cheque (s).
16. Against such claim of the respondent / plaintiff, the present appellant / defendant in his pleading and examination admitted following claims of the respondent / plaintiff i.e:
i) the business of plaintiff for giving articles on cash and credit;
ii) he (defendant) took articles from shop of the plaintiff for Rs.40,000/- only;
iii) paid Rs.10,000/- cash;
iv) issuance of cheque in favour of plaintiff;
The above admissions make it clear that half of the claim of the respondent / plaintiff was never disputed. However, the appellant / defendant made following portions of the claim of the plaintiff / respondent i.e :
i) the plaintiff not given articles for Rs.240,000/- but for Rs.40,000/-;
ii) the cheque in question was tampered as it was for Rs.30,000/- and not for Rs.230,000/-
The appellant / defendant, though had come with said denials / pleas but a reference to cross-examination of the appellant / defendant would leave nothing ambiguous that such denials / pleas stood proved from admissions of the appellant / defendant himself. The relevant portion (s) are referred hereunder:-
“It is correct to suggest that there is no overwriting or erasing word is available on cheque. Further says, the word two is not written in my presence’
‘It is correct to suggest that I have not mentioned in my written statement that plaintiff had made addition of Rs.200,000/- in my cheque after some days’.
‘It is correct to suggest that I have issued two more cheques Rs.40,000/- on 05.8.2007 and Rs.60,000/- on 15.6.2007 and both the cheques were dis-honoured. Voluntarily says, I paid entire amount to plaintiff but both the cheques were missing’
From above admissions of the appellant / defendant it is clear that he admitted to have issued all three cheque (s) i.e Rs.40,000/-, Rs.60,000/- and for Rs.230,000/- although, per the appellant / defendant, he was to pay only Rs.30,000/-. If it is believed that appellant / defendant was to pay Rs.30,000/- only then it is quite unbelievable that he would issue the cheque of more amount than the due. Thus , such stand of the appellant / defendant cannot be believed. Further, admission of the appellant / defendant that cheque in question (for Rs.230,000/-) contains no over-writing or erasing also goes to support the claim of the respondent / plaintiff. The appellant / defendant though took plea in his examination that first two cheques i.e for Rs.40,000/- and Rs.60,000/- were missing but brought nothing on record to substantiate such plea and even he failed in explaining the reason for issuing the cheques of excessive amount than the one due against him i.e Rs.30,000/-. The appellant / defendant even examined no witness to prove that he had purchased articles from the plaintiff / respondent for Rs.40,000/- and not of Rs.240,000/- as was mentioned in the agreement dated 10.5.2007. Accordingly, the point of determination is answered in ‘affirmative’.
17. In view of above discussion and conclusion of point of determination, I am of the clear view that the judgment of the learned trial court judge is not open to any exception nor any illegality or irregularity has been established by the appellant / defendant. Thus, the same is maintained and in consequence whereof the appeal, in hand, is hereby dismissed with no order as to costs.