Citation Name: 2024 YLR 1810 LAHORE-HIGH-COURT-LAHOREBookmark this Case Muhammad Asghar vs Sikandar Mehmood Da

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Citation Name: 2024 YLR 1810 LAHORE-HIGH-COURT-LAHOREBookmark this Case Muhammad Asghar VS Sikandar Mehmood Dai O. XXXVII, Rr. 1 & 2---Suit for recovery on the basis of cheque---Assertion of the plaintiff---Initial burden of proof---Shifting of onus of proof---Scope---Claim of the respondent/plaintiff was that lease agreement was executed between the parties as he (plaintiff) had delivered a trailer/vehicle on Theka/lease to the appellant/defendant and then after the rendition of accounts an amount of Rs. 34,50,000/- was outstanding against the appellant/defendant and for payment of said amount he delivered a cheque to him (plaintiff)---Version of the appellant-defend ant was that neither he obtained trailer nor executed lease-agreement nor any amount was outstanding against him , instead there was another dispute between the parties for which he (defendant) lodged FIR against the respondent/plaintiff under the provisions of Punjab Prohibition of Private Money Lending Act, 2007 ---Appellant/ defendant assailed judgment decree passed against him by the Trial Court---Held, that in the plaint the respondent plaintiff had not mentioned the date, time and place when lease agreement was executed between the parties---Respondent/ plaintiff in his statement had also not disclosed the date, place and time when he approached the respondent/ plaintiff and demanded the outstanding amount---During cross-examination, the respondent/ plaintiff admitted that no lease agreement was written between the parties when he delivered a trailer on lease to defendant and there was no eye-witness of the said agreement---From the evidence it was clear that the respondent/ plaintiff had not been able to establish his claimed facts for which the appellant/defendant had delivered the cheque to him for payment---It was quite improbable that such a valuable trailer was given by the respondent/plaintiff to appellant without executing any written lease agreement---Witnesses of the cheque were not produced by the respondent/plaintiff before the Trial Court---Prima facie the evidence of respondent/plaintiff was not reliable, trustworthy and confidence inspiring because he was involved in an act against the provisions of the Punjab Prohibition of Private Money Lending Act, 2007, and the said fact was confirmed by him during his cross-examination that an FIR regarding private money lending was also registered against him--- Plaintiff was to discharge the initial burden of proving his case especially when the plaintiff had undertaken to prove that the negotiable instrument (cheque) had been duly executed for consideration---Issue had also been framed in the case, which had placed the onus in that behalf upon the respondent/plaintiff rather he himself led evidence to prove the payment of the money through two witnesses and his own statement, therefore, the respondent/plaintiff was precluded in law to urge in the present case/scenario that it was for the respondent to prove to the contrary---Respondent/plaintiff failed to prove his case as setup in the plaint and the Trial Court failed to appreciate the evidence on record and committed an error while passing the impugned judgment and decree --- High Court set-aside impugned judgment and decree passed by the Trial Court and resultantly, the suit was dismissed ---Appeal filed by the defendant was accepted accordingly. Citation Name: 2024 YLR 1810 LAHORE-HIGH-COURT-LAHOREBookmark this Case Muhammad Asghar VS Sikandar Mehmood Dai art. 129(g)--- Civil Procedure Code (V of 1908 ), O. XXXVII, Rr. 1 & 2---Suit for recovery on the basis of cheque ---Best witnesses, withholding of---Effect---In the plaint the respondent/plaintiff took stance that a cheque was delivered to the respondent/plaintiff in presence of two witnesses but, admittedly, they (said witnesses) were not produced before the Trial Court at the time of trial---Thus, best evidence had been withheld by the respondent/plaintiff, thus, an adverse inference under illustration (g) to art. 129 of the Qanun-e-Shahadat 1984, could easily be drawn that in case they were produced they would not have supported plaintiff's version---Respondent/plaintiff failed to prove his case as setup in the plaint and the Trial Court failed to appreciate the evidence on record and committed an error while passing the impugned judgment and decree --- High Court set-aside impugned judgment and decree passed by the Trial Court and resultantly, the suit was dismissed ---appeal filed by the defendant was accepted accordingly. Citation Name: 2024 YLR 1810 LAHORE-HIGH-COURT-LAHOREBookmark this Case Muhammad Asghar VS Sikandar Mehmood Dai S. 118---Civil Procedure Code ( V of 1908 ), O . XXXVII, Rr. 1 & 2---Suit for recovery on the basis of cheque---Negotiable instrument---Presumption about drawing consideration, etc.---Proof in negativity---Scope---Expression "until thecontrary is proved"---Effect---Section 118 of the Negotiable Instruments Act, 1881, does not envisage a conclusive presumption about drawing consideration etc. of the negotiable instrument, rather, without any fear ofcontradiction, it can be held to be rebuttable in nature and this is soclear and obvious from the expression used in the said S. i.e. "until the contrary is proved" ---Presumption attached with negotiable instruments is always rebuttable and if a plaintiff fails to produce creditworthy evidence then he cannot be allowed to turn around and invoke the presumption contained under S.118 of the Negotiable Instruments Act, 1881--- In the present matter , the respondent/plaintiff had failed to discharge the initial burden and therefore had not been able to shift the onus, in circumstances---Presumption contained in Art. 118 stood rebutted since the court had to act on the basis of preponderance of evidence---Respondent/plaintiff failed to prove his case as setup in the plaint and the Trial Court failed to appreciate the evidence on record and committed an error while passing the impugned judgment and decree --- High Court set-aside impugned judgment and decree passed by the Trial Court and resultantly, the suit was dismissed---Appeal filed by the defendant was accepted accordingly.

Citation Name: 2024 YLR 1810 LAHORE-HIGH-COURT-LAHOREBookmark this Case Muhammad Asghar vs Sikandar Mehmood Dai O — 2024 YLR 1810 LAHORE-HIGH-COURT-LAHORE

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