2021 C L C 1998
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ
ROOH ULLAH and another ----Appellants
Versus
MATIULLAH and another ----Respondents
R.F.As. Nos.33 and 39 of 2018, decided on 24th February, 2021.
(a) Civil Procedure Code (V of 1908) ---
----O.XXXVII, R.2 ---Negotiable Instruments Act (XXVI of 1881), S.118---Suit for recovery
of amount ---Presumptions as to negotiable instrument--- Burden of proof ---Scope ---
Defendant assailed judgment and decree passed by trial c ourt whereby plaintiff's suit under
O.XXXVII, R.2, C.P.C., for recovery of amount mentioned in the disputed cheques was
decreed ---Validity ---Plaintiff had successfully proved that the cheques were issued by the
defendant ---Cheques and dishonour slips were produced by the representative of the
concerned Bank ---Plaintiff had simply claimed that the cheques were issued by defendant
which were dishonoured and that he was entitled for recovery of the amount mentioned in the cheques ---Presumption was attached to negotiable instrument and the burden was on the
defendant to prove the contrary ---Defendant had claimed that he had issued the cheques to
another person having similar name as that of plaintiff and that said person being relative of the plaintiff had hande d over the cheques to the plaintiff ---Defendant had not filed an
application to the concerned Bank for cancellation of the cheques ---Plaintiff had produced
the said person who had denied the suggestion of defendant that cheques were issued in his favour ---Mere denial of the defendant was not sufficient ---Judgment of Trial Court was not
open to any exception--- Appeal was dismissed.
(b) Civil Procedure Code (V of 1908) ---
----O.XXXVII, R. 2 ---Suit for recovery of amount ---Qarz- e-hasana---Award of interest/ mark
up---Scope ---Plaintiff filed suit under O.XXXVII, R.2, C.P.C., for recovery of amount
mentioned in the disputed cheques ---Trial court decreed the suit but did not grant interest at
the prevailing bank rates nor did it award costs ---Validity ---Plaintif f had stated that he had
given loan to the defendant as qarz -e-hasana--- Plaintiff was not entitled for interest/mark up
on the loan given to the defendant ---Appeal was dismissed.
Dr. M. Aslam Khaki v. Syed Muhammad Hassan and 2 others PLD 2000 SC 225 and
Badshah Jan v. Allah Ditta Sethi and others PLD 2013 Isl. 39 rel.
(c) Civil Procedure Code (V of 1908) ---
----O.XXXVII, R.2 ---Negotiable Instruments Act (XXVI of 1881), S.6--- Suit for recovery of
amount ---Cheque ---Scope ---Cheque falls within the definition of negotiable instrument
whereupon the plaintiff can file suit under O.XXXVII, R.2 of C.P.C.
Muhammad Akber Shah for Appellant (in R.F.A. No.33 of 2018).
Khushnood Ahmed for Respondent (in R.F.A. No.33 of 2018).
Khushnood Ahmed for Petitioner (in R.F.A. No.39 of 2018).
Muhammad Akber Shah for Respondent (in R.F.A. No.39 of 2018).
Date of hearing: 23rd December, 2020.
JUDGMENT
ROZI KHAN BARRECH, J. ----Facts of the case are that Matiullah (respondent in
RFA No. 33 of 2018) son of Abdul Hayi filed a Civil Suit No. 05 of 2012 against Roohullah
(appellant in RFA No. 33 of 2018) under Order XXXVII, Rule 2, C.P.C., for recovery of an amount of Rs.700,000/ - along with profit at prevailing Bank Rates before the learned District
Judge Quetta , which was transmitted to the file of Additional District Judge -I, Quetta ("trial
court") on the ground that the appellant availed a loan of Rs.700,000/ - from the respondent in
the year 2009 with promise to return the same after one and a half months; tha t after the
expiry of the said term when the respondent approached the appellant for return of the loan amount the appellant handed over two cheques of Askari Bank Jinnah Road Branch Quetta to him bearing No. 6139859 dated 05.09.2009 amounting to Rs.500,000/ - and No.6139860
dated 20.11.2009 amounting to Rs.200,000/ - (hereinafter the "disputed cheques"), however
on depositing the disputed cheques in the account of the appellant the same were returned/dishonored with the memo. slips of insufficient amount in the account of the appellant. Therefore, the suit in terms of Order XXXVII, Rule 2, C.P.C., was filed by the respondent seeking relief in the following terms:
"It is therefore respectfully prayed that the suit of plaintiff may kindly be decreed in favor o f plaintiff against the defendant and defendant be directed to pay/return the
loan amount Rs.700,000/ - (seven lacs only) along with profit at prevailing bank rate
ad cost of the suit may also be awarded, in the interest of justice."
2. After admission of t he suit and issuance of the summons to the appellant and
subsequently service upon him the appellant contested the suit seeking leave of the court to defend the suit in terms of order dated 11.11.2010 taking the plea that the suit filed by the respondent w as not maintainable and no cause of action arose to him. The appellant in his
defense had contended that no loan was obtained from the respondent nor any amount of the respondent was due against the appellant. He criticized the cheque that the said cheques were
handed over to one Matiullah son of Juma Khan and the appellant dealing with the business of tour operators sending pilgrims for Hajj. It is further contended in the written statement
that he also entered into oral agreement with regard to the sale o f rice to Matiullah son of
Mulla Juma and he handed over cheques to him. Later on the deal was cancelled and the said
Matiullah assured him that he will return the cheques but to no avail. It is further averted in the written statement that both the plaintiff and said Matiullah son of Juma Khan are relatives and close fellows and that they have managed to blackmail the answering defendant (the
appellant) and thus have indulged him in the present misconceived proceedings, while the
defendant (appellant) has never issued the disputed cheques to the respondent/plaintiff, rather
he by misusing the disputed cheques has now filed the present baseless suit.
The trial court from pleadings of the parties settled down the following issued for
determination:
"1. Whet her the suit is not maintainable in view of legal objection G and H?
2. Whether Matiullah son of Mulah Juma received cheque No.6139859 amounting to
Rs.500,000/ - dated 05.11.2009 of Askari Bank Jinnah Road, Quetta and Cheque No.
6139860 amounting to Rs.200,000/ - dated 20.11.2009 of Askari Bank Jinnah Road,
Quetta from defendant? (proposed issue on behalf of plaintiff)
3. Whether the plaintiff and defendant had an earlier dispute regarding bank accounts,
and in connection of said dispute Matiullah son of Mull ah Juma (who had already
received my cheques) relative and caste fellow of plaintiff handed over those cheques
to plaintiffs giving him the benefit of same name on cheques for instituting this suit malafidely to take revenge of bank accounts dispute? (prop osed issue on behalf of
defendant).
4 Relief ?"
After framing the issues the parties to the suit produced their respective evidence and
after completion of the same the suit of the respondent was decreed by the trial court vide impugned judgment dated 20.02.2018.
3. Through the RFA No. 33 of 2018 the appellant Roohullah has challenged the
impugned judgment dated 20.02.2018 passed in Civil Suit No.05 of 2018 by the trial court, whereby the civil suit filed by the respondent Matiullah in terms of Or der XXXVII, Rule 2,
C.P.C. against the appellant on the basis of cheques issued to the appellant for recovery of Rs.700,000/ - was decreed.
Whereas the appellant in RFA No. 39 of 2018 has assailed the same judgment passed
by the trial court to the extent o f non -granting the profit at the prevailing bank rates and cost
of the suit by the trial court.
Since both the appeals are arising out of one and the same judgment, therefore, same
are being disposed of through this common judgment.
4. We have heard the learned counsel for the parties and have gone though the record
with their able assistance.
5. Perusal of the case file revealed that the issue No.1 is about legal objection raised by
the appellant/defendant in his written statement i.e. the suit filed by the respondent/plaintiff
is not maintainable and does not come within the scope of Order XXVII, Rule 2, C.P.C.
because the so called cheques were issued to the appellant and the learned counsel for the appellant also argued that the cheques do not fall wit hin the definition of negotiable
instruments, therefore the suit under Order XXXVI, Rule 2, C.P.C., is not competent before
the Additional District Judge.
6. The cheque has been defined under section 6 of the Negotiable Instruments Act, 1881,
which reads as under: -
"A "cheque" is a bill of exchange drawn on a specified banker and not expressed to be
payable otherwise than on demand."
A bare perusal of the ibid Section reveals that the cheque falls within the definition of
Negotiable Instruments Act, 1881 as defined by section 6 of the ibid Act. Section 6 of the said Act further provides that "a negotiable instrument means a promissory note, bill of exchange or cheque payable either to order or to bearer". Sub- Rule (2) of Order XXXVII,
C.P.C. provides that: -
(1) All suits upon bills of exchange, hundies or promissory notes may in case the plaintiff desires to proceed hereunder, be instituted by presenting a plaint in the forum prescribed; but the summons shall be in Form No. 4 in Appendix B or in such other form as may be from time to time prescribed.
A plain reading of the definition of the Negotiable Instrument and bill of exchange
make its crystal clear that the cheque falls within the definition of negotiable instrument
whereupon the plaintiff can file suit under Order XXXVII, Rule 2, C.P.C.
7. Reverting to the merits of the case the point of determination of the appeal in hand
would be that:
"Whether the judgment of the trial court is legal or otherwise?"
8. From perusal of the evidence it transpi res that the plaintiff successfully proved that
the cheques were issued by the appellant/defendant in accounts which were being maintained at Askari Bank Jinnah Road Branch Quetta. The cheques and the dishonor slips Ex.P/A -1 and
Ex.P/A -2 were produced by P W-2 Asad Bin Saif the representative of Askari Bank Jinnah
Road Branch Quetta. It is also proved from the statement of PW -2 that the cheques were
presented and bounced due to insufficient amount and were returned to the bearer who simply claimed that the c heques were issued by the appellant/defendant which have been
dishonored and that he is entitled for recovery of the amount mentioned in the cheques.
9. Under section 118 of the Negotiable Instruments Act, presumption is attached to
negotiable instrument a nd the burden lies upon the defendant to prove contrary. The plaintiff
has sufficiently proved the issuance of cheques. The cheques were admittedly issued by the appellant/defendant and it is also clear that the said account has not sufficient amount to honour the cheques and as such was dishonored on account of insufficient amount. The plea
of the appellant is that he entered into an oral agreement with one Matiullah son of Mullah
Juma to sell rice to the defendant and the deal was struck over when the ric e reached from
Punjab to Quetta and the quality of the same was not up to the level of the marks of the samples as shown to him at the time of showing the samples. The defendant has issued the cheques to the said Matiullah son of Mulla Juma to purchase ris e was not materialized and
the said deal was cancelled and then the said Matiullah son of Mulla Jumma assured the
defendant that he will return the cheques but to no avail. Further the ground has been taken
by the defendant that both the plaintiff and said Matiullah are relatives to each other and
caste fellows and they have malafidely indulged the answering defendant in the present misconceived proceedings while the defendant has never issued the disputed cheques to the plaintiff rather he by misusing the disputed cheques has filed the present baseless suit.
10. For the sake of arguments if it is presumed that the defendant issued the disputed
cheques to one Matiullah son of Mulla Juma then why he did not file an application to the concerned bank for cancellation of the said cheques. It is not possible and does not stand to
the reason that how the cheques without consent of its maker were in possession of the plaintiff, the signatures of which has not been denied by the defendant. The plaintiff produce d the said Matiullah son of Mulla Juma before the trial court as PW -1 and during
cross -examination he denied the suggestion to learned counsel that neither the plaintiff
issued the cheques in his favour and nor he is in business with the defendant. No evidence has been produced by the defendant that he has not issued the cheques nor signed the same. It has not been proved on record that the cheques have not been torn out of his cheque book and do not pertain to the accounts maintained by him in the bank. So mere denial that he has
not issued the cheques would not be sufficient and he has taken the plea just to get rid of the payments outstanding against him. Even that score of the evidence has not been rebutted but
the defendant has relied upon the statement of AW -1 and AW -2 despite that the burden
heavily lies upon him as in case of negotiable instruments it is defendant who is duty bound to prove the contrary because of presumption is attached to the negotiable instruments but even then the plaintiff has su ccessfully proved and there is nothing in rebuttal on behalf of
the defendant and as such the findings of the trial court are reasonable.
In view of above discussion and conclusion of point of determination, we are 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 defendant. Thus, the same is maintained and in consequence whereof the Appeal No. 33 of 2018 is hereby dismissed with no order as to co ts.
The RFA No. 39 of 2018 is concerned the plaintiff/appellant stated in his statement
that he gave loan to the defendant as Qarz -e-Hasana. Such admitted fact is sufficient to hold
that the nature of loan is (Qarz -e-Hasana).
10. The plaintiff/appellant f iled the instant appeal to the extent of non- granting of
profit/interest at the prevailing bank rates. In the case of Dr. M. Aslam Khaki v. Syed Muhammad Hussain and 2 others (PLD 2000 SC 225) wherein it was held that Qarz -e-
Hasana is that kind of loan, gi ven on compensation ground, free from the interest/markup or
service of charges and repayable if and when the borrower is able to pay. Same definition of
Qarz- e-Hasana is given in the case of Badshah Jan v. Allah Ditta Sethi and others PLD 2013
Islamabad 3 9.
In view of the above circumstances the plaintiff/appellant is not entitled for
interest/markup on the loan given to the defendant / respondent, as such the RFA No. 39 of
2018 is also hereby dismissed. Office to draw a decree sheet.
SA/85/Bal. Appeals dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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