Muhammad Asif vs Zeeshan Sarwar

Stereo. H C J D A 38.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT

BAHAWALPUR BENCH BAHAWALPUR

JUDICIAL DEPARTMENT

Civil Revision No.200/2022

Muhammad Asif Versus Zeeshan Sarwar

JUDGMENT

Date of Hearing: 11.05.2022 Petitioner by: Mr. Javed Iqbal Chaudhary, Advocate Respondent by: Mr. Muhammad Imran Pasha, Advocate Anwaar Hussain, J. Briefly stated facts of the case are that the respondent/plaintiff (hereinafter “the respondent”) instituted a suit for recovery of Rs.1,270,000/-, on the basis of cheque dated 25.02.2021(hereinafter “the suit cheque”) issued by the petitioner/defendant (hereinafter “the petitioner”) in favour of the respondent. The petitioner moved an application for leave to appear and defend the suit, which was allowed and subsequently he filed written statement. Learned trial court, keeping in view divergent pleadings of the parties, framed necessary issues and invited the parties to produce their respective evidence. Once the evidence of the petitioner was recorded, the petitioner moved an application for comparison of hand-writing upon the suit cheque, which was contested by the respondent. The learned trial court dismissed the said application, vide order dated 24.03.2022 (hereinafter “the impugned order”), hence, the present civil revision.

2.Learned counsel for the petitioner maintains that the impugned order is against facts and law, result of mis-reading and non-reading of record and that the respondent manipulated the suit cheque which was given by the petitioner as guarantee for the loan amounting to Rs. 80,000/- with interest, taken by the father of the petitioner, which

Civil Revision No.200/2022

comes to Rs.1,27,000/- It is the case of the petitioner that the respondent manipulated the suit cheque by inserting the amount of Rs.1,270,000/-, in words and figures as well as the date thereon and comparison of hand writing by an expert would not only advance the cause of justice but would also be useful in reaching a just conclusion.

3.Conversely, learned counsel for the respondent submits that the petitioner moved the application for comparison of handwriting at a belated stage when the entire evidence from both sides have been recorded and the matter is fixed for final arguments, hence, the same has been rightly dismissed through the impugned order.

4.Arguments heard. Record perused.

5.The instant case revolves around the legal question to be answered by this Court as to whether the admission of signature on a cheque, ipso facto, amounts to execution of the cheque. Before stepping up to the merits of the case and rendering the opinion of this Court on the legal question involved, it is imperative to note that the matter needs to be examined keeping in view the presumptions of genuineness attached to the negotiable instruments under the Negotiable Instrument Act, 1881 (hereinafter “the Act”), the purpose of pleadings in a civil suit and importance of expert evidence.

6.As regards the presumptions attached to a negotiable instrument, it would be just and apt to reproduce Section 118 of the Act, which creates the said presumptions in the following manner:

“118. Presumptions as to negotiable instruments. 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, endorsed negotiated or transferred, was accepted, endorsed negotiated or transferred for consideration;

(b)as to date; that every negotiable instrument bearing a date was made or drawn on such date;

Civil Revision No.200/2022

(c)as to time of acceptance; that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;

(d)as to time of transfer; that every transfer of a negotiable instrument was made before its maturity;

(e)as to order of indorsements; that the book contains indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;

(f)as to stamp; that a lost promissory note, bill or exchange or cheque was duly stamped;

(g)that holder is a holder in due course. – that the holder of a negotiable instrument is holder of due course: provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.

(Emphasis Supplied) Perusal of the above provision brings out in unequivocal manner that the said provision merely creates a presumption with regards to certain aspects of a negotiable instrument, however, such presumption is rebuttable and can be proved to the contrary. This also implies that mere admission of signatures does not amount to admission of execution and the latter stands on a different pedestal from the former. Learned Kerala High Court, in the neighbouring jurisdiction, in case titled as “M.J. Joseph Vs. Gladis Sasi” [2011 (1) RCR (Civil) 298] held that the presumption under Section 118 of the Act can be drawn only when the execution of the cheque is admitted or proved. The admission of signature on a blank cheque, without insertion of date and amount therein, is not an admission of the execution of the cheque. In case of M.J Jopseph, supra, the cheque in issue had been

Civil Revision No.200/2022

thumb-marked which was admitted but the body of the cheque was written in English and it turned out during evidence that the lady who gave the cheque was illiterate and did not know English language.

7.Having examined the status of presumptions under the Act, it would be advantageous to discuss the importance of the pleadings of the parties in a civil case and also examine the pleadings of the present case. In a civil dispute, pleadings lay the foundation rather forms the bedrock of the lis of the parties respectively more so when the parties are obligated to produce their evidence within the contours of the pleadings and any evidence beyond pleadings cannot be read. One of the objects of the pleadings is that the parties are not taken by surprise and the adversary know the case of the opposite party in advance. In the case in hand, the entire controversy revolves around the fact as to whether the suit cheque was blank carrying only signatures of the petitioner at the time of its handing over and it is the respondent who filled the words and figures as well as the date mentioned therein or it was duly completed and then presented along with signatures of the petitioner to the respondent for satisfaction of the amount which the respondent claims to have been borrowed by the petitioner. Therefore, it is to be determined as to whether the impugned order has been passed by the learned trial court in oblivion to this factual aspect of the case. In order to address the issue, it is worth mentioning that the respondent, in para 3 of his plaint in the suit, specifically asserted as under:

چ ٹ ی ک163031100011090 ااکون ربمن ۔ دماع ہیلع دمحم آفص ےن اےنپ3 ''

روےپ0721111روڈ براچن غلبمKLP کنیبMCB 0997992630ربمنی

روبرووگااہن ک "وحاےلنمدمیعرکد کیا۔76۔17۔7170رحتبرولیمکترکےکومرہخ (Emphasis Supplied)

Whereas, the petitioner, while filing his application for leave to appear and defend the suit, took the following grounds:

Civil Revision No.200/2022

دماع ہیلع ےک وادلےن ازاں وئسمل/ روےپوسد رپ اسلئ01111 /-۔ ہی ہک رمق غلبم0 '' وئسمل ہیلع ووصل ہن یک/دمیع ووصل یایئ یھت ہکبج اسلئ ےن وکیئ رمق ازاں دمیع/ہیلع "یھت۔

Similarly, after the leave was granted, the petitioner filed written statement in which preliminary objections were taken and at Serial No. 2 thereof, the following stance was taken:

۔ہی ہکدمیعےن کایاخیلااٹشمرپیپ اسلئ ےک وادل ےساور کایدعداخیلااٹشمرپیپ دماع7 '' ت چدماعہیلعےسوطبراگریٹناحلصایکاھت۔راکیرڈیان اطہےسہکبجاخیل ی ک ہیلعےکاھبیئدمحم ر ت "ااٹشمرپیپازاںااٹسمفروشرصحنمہےہاوربررہعیدعالانجوباہلبلطرکوا کایاجےئاگ۔ While keeping the above quoted divergent pleadings of the parties in view, it is also imperative to examine the reasoning given by the learned trial court in the impugned order, which reads as under:

“4. Under the law, it is no defence in case of open cheque that who has made entries regarding date, amounts in figures and amounts in words as open cheque allow a person to enter any amount in case of open cheque.

5.The concerned banker has not made any report that signatures of account holder differ on the suit cheque Ex-P-1 even otherwise, a comparison as desired by the defendant will not makes (sic) any difference.

Therefore, this application has no force of law, same is dismissed.”

Perusal of para 3 of the plaint of the suit instituted by the respondent reproduced above reveals that a specific averment by the respondent has been made in his plaint in respect of drawing of the suit cheque by the petitioner in front of and in the presence of the witnesses. On the contrary, the petitioner has refuted the factual stance of the respondent through his application for leave to defend and the written statement that a blank cheque was handed over to the respondent as guarantee. Thus, the factual assertion by the respondent as plaintiff in the case

Civil Revision No.200/2022

and corresponding negation or refusal thereof by the petitioner as defendant makes it a point of determination, which aspect of the matter has been overlooked and ignored by the learned trial court and that can be done only through recording of evidence, which takes this Court to opine on the importance of expert evidence in such like situation. The august Supreme Court of Pakistan in case titled “Mst. Akhtar Begum v. Muslim Commercial Bank Ltd.” (2009 SCMR 264), while sending the signatures of the petitioner therein for expert opinion in the said case, held that it is a right of a party to seek and demand every possible assistance from the Courts of law and to hold him/her responsible only when he or she is found to have acted contrary to law. Therefore, in the instant case, the expert opinion will advance the cause of justice as to whether the suit cheque has been drawn in the writing of the petitioner or not in order to prove or otherwise the execution of the suit cheque. A case involving identical facts came up for adjudication before the learned Kerala High Court titled “Bindu Vs. Sreekantan Nair” (2007 BC 703) wherein the said learned High Court held as under:

“It is true that it has often been held that admission of signature in the cheque is of crucial and vital significance. But that observation cannot be understood to mean that admission of signature is equivalent or synonymous with admission of execution. Admission of signature does go a long way in the attempt to prove execution of a document. But the nice legal distinction between admission of signature and admission of execution must always be borne in mind. Admission of signature may in an appropriate case persuade the court to draw permissive presumption of fact under Section 114 of the Evidence Act. But certainly, the right of the accused to contend that a blank cheque was mis- utilized by the payee cannot be taken away by such mere admission of signature. Ultimately when the evidence is appreciated the court shall have to consider whether admission of signature coupled with the other circumstances is sufficient to prove execution. But the right of the accused is to show that only the signature is his/hers and the other entries are made unauthorizedly by the complainant cannot be taken away.”

Civil Revision No.200/2022

As set out above, it is clear that the petitioner in the present case has put forth his stance from the beginning and has been glued to the said stance that the suit cheque was blank when it was given to the respondent and other entries have been filled in unauthorizedly, which are to be proved or otherwise through evidence and a fair opportunity is to be granted to the petitioner in terms of dicta laid down in case of Mst. Akhtar Begum, supra.

8.In the above background, perusal of the impugned order reveals that the learned trial court has equated the admission of signature with the admission of the execution which, otherwise, pre-maturely seals the fate of the petitioner and the same is not warranted by law and is violative of the fundamental right of due process and fair trial embodied in Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973. The learned trial court while dismissing the application for seeking resort to expert opinion for the handwriting of the petitioner has acted in a manner not warranted by law and, hence, committed material irregularity.

9.In view of the above, the present Civil Revision is allowed and the impugned order is set aside being not in consonance with the law and the application of the petitioner for sending suit cheque for comparison of hand-writing thereupon stands accepted.

(ANWAAR HUSSAIN)

JUDGE

*Allah Bakhsh/Akram*