Form No: HCJD/C-121

JUDGMENT SHEET
IN THE LAHORE HIGH COURT,
MULTAN BENCH, MULTAN
JUDICIAL DEPARTMENT

R.F.A No. 14 of 2021

Muhammad Akram
Versus
Muhammad Asif

JUDGMENT

Date of hearing: 08.10.2021

Appellant(s) by: Mr. Waseem Sarwar Khan, Advocate
Respondent(s) by: Mr. Muhammad Masood Bilal,
Advocate

Sultan Tanvir Ahmad, J:– Present

Regular First Appeal has been filed against Judgment and
Decree dated 24.12.2020, passed by learned Additional
District Judge, Layyah, in Civil Suit No.6/1 of 2013 filed
under Order XXXVII of the Code of Civil Procedure,
1908, whereby counter claim of Rs.3,700,000/- has been
decreed against the Appellant.
2. Facts, necessary for the disposal of the
present case, are that Appellant filed a suit for recovery
of Rs.4,000,000/- under Order XXXVII of the Code of
Civil Procedure, 1908. As per the contents of the plaint,
suit amounting to Rs. 4,000,000/- was borrowed by the
Respondent in the presence of Arif, Rehmat Ali and
Muhammad Sarwar and promised to return the aforesaid
loan. Cheque No.4215524 dated 18.05.2012 amounting
to Rs.4,000,000/- of Muslim Commercial Bank Limited
was issued, which was dishonored on presentation.
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R.F.A No.14 of 2021

3. Muhammad Asif/Respondent filed leave to

appear and defend in terms of Order XXXVII Rule 2 (2)
of the Code of Civil Procedure, 1908 which was allowed
and the written statement was filed. In the aforesaid leave
as well as the written statement it is pleaded that
Rs.3,700,000/- is payable by the Appellant. In this
regard, he relied upon two cheques bearing No.7515342
dated 08.07.2012 amounting to Rs.2,200,000/- of
Muslim Commercial Bank Limited, Layyah and cheque
No.05412221 dated 24.02.2012 amounting to
Rs.1,500,000/- of Habib Bank Limited, Choubara Road
Branch Layyah. Out of the contest between the parties,
following issues and additional issues were framed:-
1. Whether the plaintiff is entitled to
recover an amount of Rs.40,00,000/-
(forty lac) from the defendant on the
basis of cheque No. 4215524 dated
18.05.2012? OPP
2. Whether the plaintiff has no cause of
action and locus standi to file this suit?
OPD
3. Whether the plaintiff is estopped by his
words and conduct to file this suit? OPD
4. Whether the plaintiff has not filed this
suit with clean hands, hence is liable to
be dismissed? OPD
5. Relief.

ADDITIONAL ISSUES
4-A. Whether the defendant is entitled to
recover Rs.37,00,000/- from the plaintiff
as alleged in preliminary objection No.1
of the written statement? OPD
4-B. Whether the plaintiff has not paid the
court-fee in line with direction of the
court, hence suit is liable to be
dismissed? OPD
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R.F.A No.14 of 2021

4. Appellant appeared as PW-1 in support of

his claim and produced Rehmat Ali, Arif Hussain as well
as Abdul Jaleel as PW-2 to PW-4, respectively. To
further support his claim, Exh.P1 to Exh.P9 were brought
on record. Respondent appeared in the witness box as
DW-3. Sajjad Ali and Muhammad Munir appeared to
support his claim as DW-1 and DW-2. Beside other
documents, Respondent produced photocopies of the
aforesaid cheques bearing No.7515342 dated 08.07.2012
amounting to Rs.2,200,000/- of Muslim Commercial
Bank Limited and cheque No.05412221 dated
24.02.2012 amounting to Rs.1,500,000/- of Habib Bank
Limited which were brought on record as Exh.D1 and
Exh.D2.
5. On 24.12.2016 learned trial Court gave
issue-wise findings and suit of the Appellant was
dismissed, whereas the claim of Respondent, for
Rs.3,700,000/-, was decreed. Aggrieved from the same,
this Regular First Appeal has been filed.
6. Mr. Waseem Sarwar Khan, Advocate for the
Appellant contended that settled rules of pleadings have
been breached by the learned trial Court and at the same
time Impugned Judgment and Decree is passed in
defiance of law of Evidence. He focused and confined his
arguments against the grant of Decree against him and
also contended that when the suit of the
Plaintiff/Petitioner was dismissed, the set-off claim could
not survive, which at best could have been considered as
defense. On the other hand, Mr. Muhammad Masood
Bilal, Advocate for the Respondent vigorously supported
the Impugned Judgment and Decree. He has argued that
Decree is granted on the basis of evidence of the
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R.F.A No.14 of 2021

Respondent/Defendant. Learned counsel for the parties,

during arguments have raised following questions:-
(i). Whether the learned Court is justified
to allow the counter claim, keeping in
view that the Respondent never filed
any suit and the set-off could merely
serve as a defense?
(ii). Whether in paragraph No.20 of the
Impugned Judgment, the learned trial
Court has rightly drawn the negative
inference for not filing the
rejoinder/written statement and the
findings given in the said paragraph
prejudiced the findings on the
remaining issue?.
(iii) If the set-off claim can survive upon
break down of the main claim?
(vi) Whether the set off claim could have
been decreed on the strength of the
photocopies of the two cheque(s) and
whether the learned trial Court is
justified in accepting on record the
photocopies of the documents in view
of Section 76 of the Qanun-e-
Shahadat Order, 1984.

8. There is no cavil left in the preposition, after

law laid down by the Honourable Supreme Court of
Pakistan, in cases titled “Syed Niamat Ali and 4 Others
versus Dewan Jairam Dass and Another”(PLD 1983
Supreme Court 5), Syed Ahmad Saeed Kirmani versus
M/s Muslim Commercial Bank Ltd., Islamabad (1993
SCMR 441) and “Civil Aviation Authority, Quaid-e-
Azam, International Airport, Karachi versus Japak
International (Pvt.) Limited, Lahore”(2009 SCMR 666)
that although a counter claim which is neither a legal set-
off nor an equitable set-off, however, there is nothing in
the statutory law or otherwise, precluding a Court from
treating a counter claim as a plaint, provided it contains
all the necessary requisites sufficient to be treated as a
plaint. The relevant part of case titled “Syed Niamat Ali
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R.F.A No.14 of 2021

and 4 Others versus Dewan Jairam Dass and

Another”(supra) is as under:-
“---It has, however, been held that although a
counter-claim which is neither a legal set-off
nor an equitable set –off, yet there is nothing in
law-statutory or otherwise, which precludes a
Court from treating a counter claim as a plaint,
in a cross suit. The reasons advanced in support
of this view that the Court has such a power are
that, although a counter claim incorporated in
the written statement does not conform to the
requirements of the Code relating to contents of
a plaint, this by itself is not sufficient to deny
the Court, the power and jurisdiction to read
and construe the pleadings in a reasonable
manner, that the Court is not prevented from
separating the written statement proper from
what was described as a counter claim and
treating the latter as a cross suit, and if the
counter claim contains all the necessary
requisites sufficient to be treated as a plaint
making a claim for the relief sought, it would
be open to a Court to convert or treat the
counterclaim as a plaint in a cross suit. If the
Court is so inclined, then the date of filing of
such converted plaint in a cross suit will be the
date on which the written statement containing
the counter claim is filed and the
maintainability of the cross suit contained in the
counter claim would be determined with
reference to that date. There are very weighty
considerations in support of the view and I have
no hesitation in accepting it as the correct of
exposition of law”.
(Emphasis supplied)

9. Here, it will also be advantageous to

reproduce the relevant part of Order VIII Rule 6 of the
Code of Civil Procedure, 1908:-
“6. Particulars of set-off to be given in
written statement.---
1. Where in a suit for the recovery of
money the defendant claims to set-off
against the plaintiff’s demand any
ascertained sum of money legally
recoverable by him from the plaintiff,
not exceeding the pecuniary limits of
the jurisdiction of the Court, and both
parties fill the same character as they
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R.F.A No.14 of 2021

fill in the plaintiff’s suit, the

defendant may, at the first hearing of
the suit, but not afterwards unless
permitted by the Court, present a
written statement containing the
particulars of the debt sought to be
set-off.
2. Effect of set-off.—(2) The written
statement shall have the same
effect as a plaint in a cross-suit so
as to enable the Court to
pronounce a final judgment in
respect both of the original claim
and of the set-off; but this shall not
affect the lien, upon the amount
decreed, of any pleader in respect
of the costs payable to him under
the decree.
3. The rules relating to a written
statement by a defendant apply to
a written statement in answer to a
claim of set-off.

(Emphasis supplied)

10. The above referred provisions depict that the

rules relating to a written statement by a defendant, also
apply to a written statement in answer to a claim of set-
off. Furthermore, Order VIII Rule 9 of the Code of Civil
Procedure, 1908, which restricts the filing of pleading,
subsequent to written statement in normal cases, also
provides that if the written statement contains a set-off,
the restriction contained therein does not apply.
Therefore, the rules of pleading that apply after filing to
normal claim also apply to the counter claim/set-off in
written statement.
11. Contrary to the above, the learned trial Court
after filing of counter-claim fixed the case for framing of
additional issues and thereafter, called and recorded the
evidence. The case was never fixed for filing of written
statement or rejoinder to the counter claim, as required
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R.F.A No.14 of 2021

under Order VIII Rule 10 of the Code of Civil Procedure,

1908. Without calling upon the Appellant or putting the
notice to file written statement or replication or rejoinder,
to the claim of the Respondent-Defendant, not just a
negative inference is drawn by the learned trial Court but
reading of paragraph No.20 of the Impugned Judgment,
reveals that this failure to file the rejoinder or written
statement has been taken as admission to the claim of
Respondent-Defendant, which clearly caused prejudice to
the case of the Appellant. The concluding part of
paragraph 20 of the Impugned Judgment is as under:-
‘This situation clearly evinces that the
plaintiff has admitted the claim of set
off of the defendant amounting to Rs.
3,700,000/-.’
12. Next point that came up for consideration is
the survival of the claim in set-off, when the claim in the
suit of the Petitioner / Plaintiff was dismissed. In my
assessment, the claim of set-off survives even if the claim
of the Plaintiff breaks down for any reason. Reliance can
be placed “Muhammad Khalid versus Muhammad Adnan
Qureshi” (2018 CLC 585), “Jamandass Nagindass
versus Beharilal Bishweshwarlal Zunzunwalla” (AIR
1941 Nagpur 258), “(Firm) Bansi Dhar Kunji Lal versus
Lalta Prasad and another” (AIR 1934 Allahabad 543).
In “Muhammad Khalid versus Muhammad Adnan
Qureshi” (supra), the Division Bench of the Honourable
Islamabad High Court decided as follows:-
….As per our estimation, the claim of the set-off
survives and the same requires separate
adjudication, even in cases where plaintiff has
failed to prove his case or has withdrawn the
claim, the learned Trial Court is under obligation
to frame a separate issue of set-off raised in the
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R.F.A No.14 of 2021

written statement by the defendant and adjudicate

upon the matter in terms of Order XIX, C.P.C.

13. As far as the arguments of the learned

counsel for the parties, regarding accepting photocopies
of the cheques and other documents are concerned,
Section 76 of Qanun-e-Shahadat Order, 1984 clearly
provides that secondary evidence as to the existence,
conditions or contents of documents can be given in
limited circumstances which are narrated in Article 76 (a
to i) of Qanun-e-Shahadat Order, 1984. Article 76 (a) of
Qanun-e-Shahadat Order, 1984 has been debated before
this Court, which is as follows:-
76. Cases in which secondary evidence relating to
document may be given. Secondary evidence may be
given of the existence, condition or contents of a
document in the following cases:
a) when the original is shown or
appears to be in the possession or
power of the person against whom
the document is sought to be proved,
or of any person out of reach of, or
not subject to, the process of the
Court; or of any person legally bound
to produce it; and when, after the
notice mentioned in Article 77, such
person does not produce it;
b) XXXXX
c) XXXXX
d) XXXXX
e) XXXXX
f) XXXXX
g) XXXXX
h) XXXXX
i) XXXXX

14. Reading of the same reveals that secondary

evidence can only be tendered, if the document is in the
possession of person against whom it is required to be
proved or the person is out of reach or he is not subject to
process of the Court or any person who is legally bound
to produce it; and such person has not produced the same
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R.F.A No.14 of 2021

despite notice. The condition to produce the secondary

evidence is the notice to the party in whose possession or
power the document is, unless the case falls in the
proviso of Article 77 of Qanun-e-Shahadat Order, 1984.
15. In the present case, the documents (Exh.D1
and Exh.D2) along-with dishonor-slips are in the
possession of police-authorities in connection with
criminal case FIR No.584/12 dated 08.07.2012 under
Section 489-F of PPC registered at Police Station City,
District Layyah. The documents in question are not
beyond the reach of learned trial Court and the original
could have easily been procured, compared and
exhibited. Photocopies of the dishonor-slips are on
record without examining its maker. When these
photocopies were exhibited by DW-1 on 14.03.2019, the
objection was raised, as evident from the following parts
of examination-in-chief:

‫ُی ر‬
‫اسےنمپرک‬ ‫چ مہارے‬ ‫)اک ی ک‬HBL( ‫ارکمےن مہارےرمقدنپرہالھکروےپینگاور‬---
‫ی‬
‫چ وفوٹ‬ ‫رحتپ یک ۔ ی ک‬
‫ ک ر‬24.02.2012 ‫ئل یارخی‬ ‫چ رپ وایسپ رمق ےک ک‬‫ےک آفص وک د کیا۔ ی ک‬
‫) ومشمہل لثم وگاہ وکداھک کیا ایگ سج ےن دمحم ارکم ےک دطختس‬EX/D1( ‫اکیپ‬
‫ی‬
---‫زپرارتعاض)دصت قیئیے۔۔‬ ‫) ( ک‬EX/D2/A(

‫ن‬
‫ آفصےن ک ر‬---
‫)الھکروےپ‬22(‫موکالبایلاوراسوقآفصےنارکموکیاسیئ‬
‫چد کایسجرپیارخی‬‫الھکروےپاک ی ک‬22‫)اک‬MCB(‫دےیئسجےکوعضارکمےنآفصوک‬
‫) ( ک ر‬EX/D1/A ( ‫چ‬
‫زپ ارتعاض) دصت قی‬ ‫رحتپ یک وفوٹ اکیپ ی ک‬
‫ ک ر‬08.07.2012
---‫رکیاوہں۔‬

16. Learned counsel for the parties were asked

as to whether at any stage of the trial, learned Court has
ever decided these objections, both learned counsel for
the parties conceded that these objections were never
decided. This position is also apparent from reading of
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R.F.A No.14 of 2021

the Impugned Judgment and record. The reliance by

learned trial Court on the photocopies rather bringing the
same on the record when the primary evidence is readily
available is contradictory to aforesaid provisions of law.
This Court in cases titled “Azhar Abbas and Others
versus Haji Tahir Abbas and Another”(2021 CLC 1351),
“Razia Begum versus Abdul Aziz” (2006 CLC 772) and
“Danial Shafqat versus Nasreen” (2005 YLR 1185) has
already observed that admitting photocopy of documents
in evidence and reading the same without observing legal
requirements of Article 76 of the Qanun-e-Shahadat
Order, 1984 would be illegal. The relevant part of the
judgment in Azhar Abbas and Others (supra) is as
follows:-
6.-----In the present case the situation
remained the same, but the learned Courts
below have not considered and dilated
upon the requirement of law because
admitting photocopy of a document in
evidence and reading the same in evidence
without observing legal requirements of
Article 76 of the Qanun-e-shahadat Order,
1984 would be illegal. Reliance is placed on
Feroz Din and others v. Nawab Khan and
Others (AIR 1928 Lahore 432) Fazal
Muhammad v. Mst. Chohara and Others
(1992 SCM R 2182) and Abdul Rehman and
another v. Zia-ul-Haque Makhdoom and
Others (2012 SCMR 954). Neither authors
of the documents nor the witnesses nor such
documents in original have been produced
in Court for inspection purposes. Thus, such
documents, without formal proof, cannot be
relied upon; reliance is placed on Khan
Muhammad Yousaf Khan Khattak v. S.M.
Ayub and 2 Others (PLD 1973 SC 160), but
as against this, the learned Courts below
placing reliance on such documents have
proceeded to pass the impugned judgments
and decrees, which cannot be allowed to
hold field”.
(Emphasis supplied)
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R.F.A No.14 of 2021

17. I am further fortified in my view by the law

laid down by the Honourable Supreme Court of Pakistan
in the cases titled Abdul Rehman and another versus Zia-
ul-Haque Makhduoom and others (2012 SCMR 954) and
Abdul Rahman through L.Rs. Versus Haji Muhammad
Yousaf through L.Rs (2007 SCMR 61).
18. The above-referred principles have not been
followed by the learned trial Court while passing the
Impugned Judgment. The learned Court is bound to
adjudicate upon the claim of set-off by considering and
observing all the principles of pleadings, Code of Civil
Procedure, 1908 and the Qanun-e-Shahadat Order, 1984.
Findings of learned trial Court, in the given
circumstances of the case, are unsafe and the Impugned
Judgment and Decree is against the settled law, therefore,
the same is set-aside. Instant Regular First Appeal is
allowed and the case is remanded to the learned trial
Court, which shall hold de novo trial.

(SULTAN TANVIR AHMAD)

JUDGE

ANNOUNCED IN OPEN COURT ON _02.11.2021.

APPROVED FOR REPORTING

JUDGE
Hashmi