EJAZ AHMED vs ABDUL HAMEED O — 2022 YLR 2354 LAHORE-HIGH-COURT-LAHORE

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EJAZ AHMED VS ABDUL HAMEED O. XXXVII, Rr. 1 & 2 & O. VII, R. 16----Recovery suit for lost negotiable instrument---Scope---If a suit was brought on loss of negotiable instrument, it was mandatory and incumbent upon plaintiff to firstly prove that the instrument was lost and then claim indemnity. O. XXXVII, Rr. 1 & 2 & O, VII, R. 16---Suit for recovery---article 76 of Qanun-e-Shahadat, 1984---- Departure from pleadings---Contradictory dates in respect of lost cheque---Respondent/ plaintiff filed suit for recovery against defendant/appellant on the basis of a cheque, which was decreed by Trial Court---Held, that respondent/plaintiff was required to prove as to whether he was entitled to recover certain amount from appellant/defendant on the basis of cheque and evidence of respondent was materially discrepant and inconsistent on several counts---Due date of cheque was 07.05.2012 and in the plaint respondent/ plaintiff categorically stated that on 02.05.2012 he was going to encash the cheque but it was lost on the way and it remained unexplainable that as to why the cheque which was encashable on 07.05.2012 was being taken for encashment on 02.05.2012---Perusal of police report and statements of respondents during his examination and cross-examination showed four different dates of the loss of cheque---Respondent in his cross-examination also stated that he came to know about the lost cheque on the day of its encashment---Respondent failed to prove his case as the stance put forth by him was hit by the legal maxim "secundum allegata et probata" (no one could be allowed to prove a fact which was not pleaded under the law ) and "allegans contraria non est audiendus" (a person alleging contradictory facts should not be heard)---appeal was allowed and suit for recovery was dismissed. art. 76(c)---Civil Procedure Code (V of 1908), O. XXXVII, Rr. 1 & 2 & O. VII, R. 16---Cases in which secondary evidence relating to document may be given---Recovery suit for lost negotiable instrument---Onus to prove loss of negotiable instrument a cheque----Respondent was under heavy onus and obligation to prove that the cheque had not been lost due to his own default or negligence---Trial Court at the time of deciding the application of respondent for permission to lead secondary evidence neither considered the material fact of loss of the cheque, qua availability of the second cheque referred in police report by respondent which was claimed by appellant/defendant to have been issued to him which remained in his possession and was produced in original---Such fact completely destroyed the story of respondent---Fact regarding loss of original cheque was required to be proved before leading secondary evidence and if it was not done so then even if secondary evidence was produced, it would become valueless, vitiating all the proceedings built on such secondary evidence---Court had to first consider and resolve the question as to whether loss of the cheque had been proved and if it found so proved, then it was to move on to examine worth of secondary evidence---Respondent could not prove the loss of cheque, hence the secondary evidence had lost its meaning and evidentiary worth---No explanation was given to the effect that if cheque was lost, why the suit was brought on the last day of limitation---appellant in his written statement as well as his deposition had categorically stated that cheque was returned to him by respondent which was destroyed by him after appellant made the entire payment to respondent and the second cheque given to him by respondent as guarantee cheque was still available with him---Such portion of deposition was not rebutted or questioned at all in cross-examination, hence evidence tendered by appellant would be deemed to have been admitted---appeal was allowed and suit for recovery filed by respondent was dismissed.

EJAZ AHMED vs ABDUL HAMEED O — 2022 YLR 2354 LAHORE-HIGH-COURT-LAHORE

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