SHER ZAMAN Versus MUHAMMAD WALI

ORDER

MUHAMMAD ALAM, J.--- This is civil first appeal against the judgment/decree dated 07/04/2016, passed by the learned Civil Judge 1st Class Astore in C. Suit 73/2010, whereby, the trial Court has dismissed the suit of the appellant/ plaintiff in the following words:-

"In view of my findings on the issues this suit is held not proved on merits and time barred. Hence dismissed as meritless and time barred. Cost shall follow the event. Order announced in open court. File stands disposed of accordingly and be consigned to record room after due completion.

Announced.

7-4-2016 Sd/xxx

Civil Judge 1st Class,

Astore.

2. Appellant/plaintiff filed civil suit in the trial Court for recovery of Rs. 2,54,000/- with profit at the bank rate, in the light of declaration dated 12/02/2000 read with cheque No. 10213941 and cheque No. 070898, issued by respondent against his account in the Cooperative Bank. Respondents contested the suit and pleaded that the agreement referred in the plaint is false and fictitious, as defendant No.1 never entered into any agreement with appellant/plaintiff. Defendants denied that defendant No.2 ever taken responsibility of payment of suit amount on behalf of respondent No. 1. Learned trial Court completed trial proceedings and passed the judgment dated 07/04/2016. Feeling aggrieved from the same appellant/plaintiff filed the appeal in hand.

3. We have heard thoughtfully considered arguments advanced by the parties. In proof and rebuttal of issues, parties have filed documentary evidence and also adduced oral evidence. It is very important to note that the learned trial Court has based his impugned judgment/ order on two grounds:-- i. Trial Court found the suit time barred. ii. In the opinion of trial Court the suit of appellant/plaintiff was meritless.

4. So, the questions for determination are, whether suit is time barred? And whether the case is meritless? Learned trial Court has framed issue No.2, whereby appellant/plaintiff is bound to prove suit within time. In this connection, we have noted that Exh.P/3 is the cheque issued by respondent in the name of appellant/ plaintiff. The said cheque shows that the same has been issued on 08/02/2008, while the suit has been filed on 13/11/2010 as the cheuque Exh.P/3 was dishonored. So, appellant/ plaintiff filed the suit long before 3 years passed after issuance of the cheque, Exh. P/3. Learned trial Court has very wrongly held that the suit is time barred, as the cause of action for filing the suit, obviously after dishonor of the cheque, Exh.P/3. We therefore, reverse findings of the trial Court on issue No.2 and hold that, suit is well within time.

5. The second question is that, whether suit is meritless? In this connection we had to go through the evidence of parties. The compromise between parties is Exh.P/1, which shows two witnesses as marginal witnesses. Appellant/plaintiff produced Mr. Saeed Alam, PW-1, one of the said marginal witnesses. A very important aspect of the case is that issuance of Exh.P/3 amounted to acknowledgment of the indebtedness of respondent No.1 to appellant/plaintiff. So, the burden of proof as to correctness or otherwise of Exh.P/1, the basic agreement between the parties, was on respondents/defendants. File does not contain any evidence in proof of incorrectness of the Exh.P/1. So, in our opinion, cause of action for filing present suit has arisen soon after dishonor of the cheuqe, therefore, appellant/plaintiff has good cause of action for filing the suit and findings of the trial Court on issue No. 1 are wrong.

6. Yet another very important aspect of the case is that, learned trial Court has passed the impugned judgment without any appraisal and reference of the evidence of parties, therefore, also findings of the trial Court on issues Nos.3 to 6 are incorrect. On issue No.7 learned trial Court has given his findings against respondents, who did not file any appeal etc, therefore the said findings have attained finality. Findings of learned trial Court on issue No.8 are also against defendants. Respondents did not produce any evidence in proof of issue No.9 and learned trial Court wrongly gave his findings in favour of respondents. There is no evidence in proof of issues Nos. 10 and 11, therefore findings of the learned trial Court on said issues are also wrong.

7. In sequel of above discussion, appeal accepted, impugned judgment set aside and suit remanded to the trial Court with direction to rewrite the judgment, but strictly in accordance with the provisions of law governing writing of the judgment. Respondents to bear costs. This File be consigned to record.

ZC/188/GB Case remanded.