ABDUL MAJEED AKHTAR Versus MUHAMMAD ZEESHAN SHOUKAT

MASUD ABID NAQVI, J.--- Brief facts of this appeal are that the respondent/plaintiff filed a suit for recovery of Rs.19,00,000/- under Order XXXVII, Rules 1 and 2 of C.P.C. against the Appellant / defendant. The appellant/defendant appeared before the learned trial court and filed an application for leave to appear and defend the suit which was duly contested by the respondent/plaintiff by filing written reply thereto. The learned trial court, after hearing the parties decreed the suit vide judgment and decree dated 24.09.2016. Feeling aggrieved, the appellant/ defendant has preferred instant regular first appeal and challenged the validity of the said judgment and decree.

2. I have heard the arguments of the learned counsel for the parties and have minutely gone through record as well as the impugned judgment and decree.

3. The appellant/defendant while appearing as DW.1 during cross examination conceded as under:

No one else appeared on behalf of the appellant/defendant except DW.2/Tariq Ali who was neither present at the time of signatures or payment of amount. DW.2 deposed about the alleged "punchaiti" decision but conceded in cross-examination as follows:

After the admission of the execution of cheque, onus to prove that cheque was issued as a guarantee was on the appellant/defendant but he miserably failed to prove his version through oral or documentary proof. It is well settled law that under section 118 of the Negotiable Instruments Act, 1881, there is an initial presumption that the negotiable instrument is made, drawn, accepted or endorsed for consideration and in a case to contrary the onus is on the person who is claiming to execute guarantee cheque to prove the same. The honorable Supreme Court in a case reported as Muhammad Azizur Rehman v. Liaquat Ali (2007 CLD 1542) had held as under:

"............According to Section 118 of the Act, until the contrary is proved, the presumption shall be made that every negotiable instrument was made or drawn for consideration........"

Reference is also made to cases reported as Muhammad Azizur Rehman v. Liaqat Ali (2007 SCMR 1820), Muhamad Ali v. Wali Muhammad (2015 CLD 1820 (Lahore), Abdul Karim v. Muhammad Idrees (2014 CLC 1001) and Syed Zawar Hussain v. Syed Riazul Abbas Sherazi (2015 MLD 890 (Lahore).

4. By scanning the contents of the pleadings, it is crystal clear that the defendant/appellant has failed to substantiate his claim that cheque was issued as a guarantee and he will not be relieved from discharging the above burden of proof. Testing the case in hand, at the touchstone of the abovementioned settled law, I feel no hesitation in holding that the appellant/defendant has miserably failed to establish/ substantiate /prove his claim(s), hence, the findings of learned trial court are maintained/upheld.

5. In view of the foregoing discussion, this Court is of the affirmed view that learned trial court has rightly proceeded in the matter. The impugned judgment and decree does not suffer from any infirmity, legal or factual, requiring interference, therefore, this appeal is dismissed.

SA/A-40/L Appeal dismissed.