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Official Citation: 2026 LHC 4182
Court / Jurisdiction: Lahore High Court (Honorable Mr. Justice Muhammad Sajid Mehmood Sethi)
Parties: MUHAMMAD TUFAIL, ETC vs HAWALDAR NEK MUHAMMAD
Ruling Summary: This decision was rendered by the Lahore High Court (Honorable Mr. Justice Muhammad Sajid Mehmood Sethi), officially reported as 2026 LHC 4182. In this matter between MUHAMMAD TUFAIL, ETC and HAWALDAR NEK MUHAMMAD, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Lahore High Court (Honorable Mr. Justice Muhammad Sajid Mehmood Sethi) DECISION DATE: 08-06-2026 CASE DETAILS: Regular First Appeal-Regular First Appeal (Final Decree)-Appeal u/s 96 CPC 108-16 ============================================================ Stereo. H C J D A-38. JUDGMENT SHEET IN THE LAHORE HIGH COURT, LAHORE JUDICIAL DEPARTMENT
RFA No.108 of 2016
Muhammad Tufail (deceased) through Legal Heirs Versus Hawaldar Nek Muhammad J U D G M E N T
Date of hearing: 08.06.2026. Appellants by: M/s. Saida Kanwal, Shazia Pervaiz Butt and Mushtaq Ahmad Mohal, Advocates. Respondent by: M/s. Mushtaq Ahmad Bhatti, Rana Nasir Mushtaq and Mubashar Niaz Gujjar, Advocates.
MUHAMMAD SAJID MEHMOOD SETHI, J .- This Regular First Appeal is directed against the judgment and decree dated 31.10.2015 passed by the learned Additional District Judge, Pakpattan, whereby the suit instituted by the respondent for recovery of Rs. 6,00,000/ - on the basis of a cheque was decreed against the appellants being legal heirs of Muhammad Tufail deceased. 2. The relevant facts are that the respondent instituted a suit under Order XXXVII CPC asserting that Muhammad Tufail, predecessor-in-interest of the appellants, had borrowed a sum of Rs. 6,00,000/- and in order to discharge the sa id liability issued cheque No. T13496732 dated 16.08.2011 drawn on Habib Bank Limited, Bunga Hayat Branch, Pakpattan. Upon presentation, the cheque was dishonoured. It is an admitted position that Muhammad Tufail expired on 10.08.2012 , hence, t he suit was instituted against his legal heirs. The appellants contested the suit by filing written statement . The learned Trial Court, after 2 RFA No.108 of 2016 framing issues, recording evidence and hearing arguments of both sides, decreed the suit. Hence this appeal. 3. Learned counsel for the appellants has mainly contended that the impugned judgment and decree are wholly without lawful authority as the suit under Order XXXVII CPC was instituted against Muhammad Tufail who had admittedly died on 10.08.2012, whereas the suit was filed thereafter, making it a nullity in the eyes of law. He argues that substitution of legal heirs under Order XXII CPC is not permissible where the defendant had died prior to institution of the suit, rendering the entire proceedings incompetent and liable to rejection under Order VII Rule 11 CPC. He further submits that the appellants cannot be made personally liable as Muhammad Tufail left behind no estate, and in absence of inheritance, no liability can devolve upon legal heirs beyond the estate of the dece ased, which in the present case is non -existent. Lastly, he contends that the findings of the learned Trial Court suffer from misreading and non -reading of evidence, are perverse and arbitrary, and that material aspects were ignored, resulting in an illegal and unjust decree. 4. Contrarily, l earned counsel for the respondent has supported the impugned judgment and decree, contending that the respondent proved his case through cheque issuance and its dishonour, attracting presumption under Section 118 of the Negotiable Instruments Act. He argues that issuance of cheque by the deceased is not seriously disputed and the plea of blank cheque is unproven. He further submit s that legal heirs were rightly held liable to the extent of the estate of the deceased, and the suit was properly instituted against them.
3 RFA No.108 of 2016 5. Arguments of learned counsel for the parties have been heard and the record has been perused. 6. My issue-wise findings are as under:- ISSUE NO.1 Whether the plaintiff is entitled to a decree for recove ry of an amount of Rs.6,00,000/ - against the defendant on the basis of cheque in question? OPP
7. On Issue No.1, which is the pivotal and substantive issue in the present case, the plaintiff/respondent sought recovery of Rs.6,00,000/- on the basis of cheq ue No. T13496732 dated 16.08.2011 allegedly issued by Muhammad Tufail, predecessor-in-interest of the appellants, drawn on Habib Bank Limited, Bunga Hayat Branch, Pakpattan Sharif. The foundational plea of the respondent is that the said amount was advanced as a loan to the deceased Muhammad Tufail, and the cheque was issued for repayment of the same. The dishonour of the cheque upon presentation is also brought on record through documentary evidence. 8. In support of his claim, respondent himself appeared in the witness box as PW -1 and produced Muhammad Idrees and Muhammad Farhan as PW-2 & PW -3 respectively. In documentary evidence, he produced the suit cheque as Exh.P1, dishonour memo as Exh.P2, however, the remaining documents i.e. Exh.P3 to Exh.P5 were p roduced in the statement of his counsel. Whereas, appellant No.3 Muhammad Qasim appeared in the witness box as DW -1 while documentary evidence comprising Exh.D1 to Exh.D3 were produced in the statement of his counsel. 9. It is well-settled that the documents sought to be tendered in evidence could not have been exhibited through the statement of learned counsel, as such mode of proof does not satisfy the mandatory requirements of law. Mere production or tendering of documents by counsel does not dispense w ith the 4 RFA No.108 of 2016 legal requirement of proof under the Qanun-e-Shahadat Order, 1984, nor can such documents be treated as duly exhibited without being proved through competent witnesses. Reliance has been placed upon the decision of the august Supreme Court rendered in Rustam and others v. Jehangir (deceased) through LRs. (2023 SCMR 730), wherein this principle of evidence law was reiterated in the following words: “7. As regards the other two documents i.e. mutation No.1836 (Exh.D -9) and mutation No.1837 (Exh.D. -8), it is suffice to say that according to principle settled by this Court in the cases reported as Mst. Hameeda Begum and others v. Mst. Irshad Begum and others (2007 SCMR 996), Federation of Pakistan through Secretary Ministry of Defence and another v. J affar Khan and others (PLD 2010 SC 604) and Province of the Punjab through Collector, Shikhupura and others v. Syed Ghazanfar Ali Shah and others (2017 SCMR 172) the document should be produced in the evidence by the party itself and a fair opportunity sho uld be given to the opposite party to cross - examine the same, as such, the said two documents produced by the defendants counsel in his statement could not be taken into consideration.” Same principle was expounded by the superior Courts in Manzoor Hussain (deceased) through L.Rs. v. Misri Khan (PLD 2020 Supreme Court 749) , Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik through his legal heirs and others (PLD 2021 Supreme Court 715), Mst. Rasoolan Bibi v. Province of Punjab and others (2023 CLC 1171) and National Highway Authority, Islamabad through Project Director Zafar Mehmood v. Muhammad Afzal Bhatti and another (2024 CLC 1246). Accordingly, Exh.P3 to Exh.P5 as well as Exh.D1 to Exh.D3, having been brought on record through the statements of learned counsel, do not stand legally proved and, therefore, carry no independent evidentiary value. However, their exclusion from consideration does not materially affect the determination of the controversy. DW-1, Muhammad Qasim, during cross -examination can didly admitted that he had no personal knowledge of the alleged repayment transaction and 5 RFA No.108 of 2016 further acknowledged that the cheque in question had been issued by his father in favour of the plaintiff, albeit with the assertion that the same was a blank cheque. The relevant portion is reproduced hereunder:- یہ درست ہے کہ میرے والد نے مدعی کو ایک چیک دیا تھا۔ چیک خالی تھا۔ This admission substantially undermines the defence version. Once the issuance of the cheque in favour of the plaintiff stood admitted, the ev idential burden shifted upon the defendants to establish, through cogent and admissible evidence, the circumstances in which the cheque was allegedly issued and to substantiate their plea that the underlying liability had already been discharged. No such e vidence was forthcoming. The testimony of DW -1, being founded upon hearsay and admittedly lacking personal knowledg e of the alleged repayment transaction, is insufficient to discharge that burden. Consequently, the plea of repayment remains a bare assertio n unsupported by any reliable, independent or admissible evidence, whereas the plaintiff’s claim stands unrebutted on the material aspects of the controversy. 10. The record reveals that issuance of the cheque is not seriously disputed by the defence; rath er, the consistent stance of the appellants is that the cheque was a blank instrument issued for a much lesser liability of Rs.65,500/ - relating to the purchase of goods, which, according to them, stood subsequently adjusted during the lifetime of Muhammad Tufail. This stance, however, remained wholly unsubstantiated through any independent or corroborative evidence. As already observed, DW -1, Muhammad Qasim, ad mittedly had no personal knowledge of the alleged repayment transaction and merely reiterated the defence plea without producing any material capable of establishing either the alleged adjustment of liability or repayment of the amount claimed. The admission regarding issuance of the cheque by the deceased in favour of 6 RFA No.108 of 2016 the plaintiff, though accompanie d by the assertion that it was a blank cheque, furnished sufficient foundational material to cast an evidential burden upon the appellants to establish the exa ct nature of the transaction and discharge of liability, which they have failed to do. In Mst. Nazeeran and others v. Ali Bux and others (2024 SCMR 1271) , the august Supreme Court elaborately examined the principles governing the burden of proof and its shifting. The Court held that, although the initial burden lies upon the party asserting a fact, su ch burden may shift to the opposite party where certain facts stand admitted by that party. The relevant extract from the judgment is reproduced below: “12. …Thus, the legal burden would always remain on the plaintiffs and the evidential burden would shift to the defendants if they (plaintiffs) discharged their initial burden. The evidence required to shift the evidential burden need not necessarily be direct evidence i.e. oral or documentary evidence or admissions made by the opposite party, it may compris e of circumstantial evidence or presumptions of law or fact. The question as to whether the burden of proof has been discharged by a party to the lis or not, w ould depend upon the facts and circumstances of the case. If the facts are admitted or, if otherw ise, sufficient materials have been brought on record to enable a Court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden of proof lies would still be liable to produce direct evidence .” (emphasis supplied)
11. Once execution of the cheque stood either admitted or sufficiently proved through oral and documentary evidence, the statutory presumption under Section 118 of t he Negotiable Instruments Act, 1881 came into operation, whereby every negotiable instrument is p resumed to have been drawn for consideration. In Muhammad Azizur Rehman v. Liaquat Ali (2007 SCMR 1820) , a five -member Bench of the august Supreme Court expounded this concept in the following words: “6. The appellant denied the execution of promissory not e or receipt in his written statement but in the cross -examination admitted -that the pro note and the receipt were executed by him as a guarantee 7 RFA No.108 of 2016 for business with respondent. According to section 118 of the Act, until the contrary is proved, the presumpti on shall be made that every negotiable instrument was made or drawn for consideration. The appellant has not been able to establish on record through independent and cogent evidence that consideration of the promissory note has not been received by him.”
The appellants were under a legal obligation to rebut this presumption by producing convincing, cogent, and independent evidence demonstrating absence of consi deration or discharge of liability. Mere assertions of the cheque being blank or issued against a minor liability, without any documentary proof of payment or independent corroboration, do not discharge this burden. The learned Trial C ourt ha s rightly appreciated this legal position and ha s not committed any illegality or material irregularity in reco rding a finding that the appellants failed to rebut the statutory presumption. 12. The contention that the cheque was blank or undated also does not advance th e appellants’ case in the absence of any evidence suggesting fabrication, tampering, or misuse established through admissible proof. It is well-settled that even a blank signed cheque, if voluntarily handed over, carries legal consequences under the Negotiable Instruments Act once consideration is presumed and not disproved. The defence, therefore, remained in the realm of mere denial, which cannot dislodge the plaintiff’s otherwise supported claim. 13. Accordingly, Issue No.1 has rightly been decided in favour of the plaintiff, as he has successfully established entitlement to recover the amount of Rs .6,00,000/- on the basis of the dishonoured cheque. ISSUE NO.2 Whether the plaintiff had no cause of action and locus standi? OPD
14. As regards Issue No.2, the appellants’ objection that the suit was not maintainable for want of cause of action or locus standi is devoid of substance. The plaint specifically discloses 8 RFA No.108 of 2016 the advancement of loan, issuance of cheque, presentation thereof, and its dishonour, which co llectively constitute a complete and legally enforceable cause of action. The plea that the defendant was deceased at the time of institution of suit is also misconceived, as the legal heirs were rightly impleaded to represent the estate of the deceased debtor. It is settled law that legal representatives step into the shoes of the deceased for purposes of civil liability to the extent of estate inherited. Reliance in this regard has been placed upon the decision of the august Supreme Court rendered in Messrs Summit Bank Limited through Manager v. Messrs Qasim and Co. through Muhammad Alam and another (2015 SCMR 1341), wherein it was held by the august Court that: “16. It is a well settled principle of law that a pecuniary obligation undertaken by a deceased promisor would be binding on his legal representatives to the extent of the estate of the deceased promisor in their hand…”
The objection raised by the appellants that the suit was not maintainable on account of the death of Muhammad Tufail prior to its institution is misconceived. The record reveals that Muhammad Tufail was not impleaded as a living person; rather, the suit was instituted against him through his legal heirs, who were before the Court from the very inception of the proceedings and fully contested the claim on merits. They filed written statement, led evidence and were afforded complete opportunity to defend the suit. Thus, no prejudice whatsoever was caused to them on account of the form in which the suit was instituted. Equally devo id of substance is the contention that no liability could be fastened upon the appellants for wan t of inherited estate. Respondent Nek Muhammad (PW -1), during the course of cross -examination, specifically stated that the legal heirs of Muhammad Tufail had inherited a residential house and agricultural land left by the deceased. Significantly, 9 RFA No.108 of 2016 no convincing evidence was produced by the appellants to rebut the said assertion or to establish that Muhammad Tufail had left behind no inheritable estate. The defen ce in this regard remained a bare assertion unsupported by any reliable material. It is a settled proposition of law that legal representatives are liable to discharge the liabilities of a deceased person to the extent of the estate inherited by them. Therefore, once it stood established that Muhammad Tufail had left behind inheritable assets which de volved upon the appellants, they cannot escape liability merely by making an unsubstantiated plea to the contrary. The liability sought to be enforced in the p resent case is not personal in nature but is relatable to the estate inherited by the appellants from the deceased. The objection under this issue was thus rightly repelled by the learned Trial Court. ISSUE NO.3 Whether the suit is incompetent in view of preliminary objections No.2 and 3 of written statement? OPD
15. The onus to prove this issue was upon the defendants; however, they have failed to produce any cogent or reliable evidence in support of the preliminary objections raised by them. Mere asserti ons made in the written statement do not constitute proof unless substantiated through admissible evidence, which is lacking in the present case. So far as the objections are concerned, the defendants have not been able to establish, through any convincing material on record, that the suit suffers from any legal infirmity or is otherwise not maintainable. The record further reflects that no substantive evidence was led to prove the alleged factual pleas taken in preliminary objections No. 2 and 3. In absenc e of proof, the said objections remain unsubstantiated and are accordingly repelled. Consequently , the issue is decided against the defendants and in favour of the plaintiff.
10 RFA No.108 of 2016 ISSUE NO.4 Whether the suit is false and vexatious? OPD
16. Issue No.4 pertains to the allegation that the suit is false and vexatious. This is a question of fact requiring str ict proof. The appellants, except for making general and sweeping assertions, have failed to produce any credible material to demonstrate mala fides on the part of the plaintiff. The mere setting up of a defence or denial of liability does not render a suit false or vexatious. The learned C ourt below ha s rightly observed that no inde pendent evidence was led to substantiate this plea, and therefore the same has been rightly decided against the appellants. ISSUE NO.5 Whether the plaintiff has not come to the court with clean hands? OPD
17. Issue No.5 relates to the allegation that the plaintiff has not approached the Court with clean hands. This equitable plea also remains unsubstantiated. It is well -established that the burden to prove lack of bona fides res ts heavily upon the party alleging it. This principle was reiterated by the august Supreme Court in Tabassum Shahzad Vs. I.S.I. and others (2011 SCMR 1886 ), in the following words: “6. …It is by now a well settled proposition of law that malice and mala fi de are questions of fact which have to be proved by leading evidence in absence of which no adverse presumption could be drawn qua proceedings initiated under the law and order passed by the competent authority. Mere vague allegation of mala fides would be of no avail to the petitioner…”
In the present case, apart from reiteration of the defence already considered under Issue No.1, no independent material has been produced to demonstrate concealment of facts or fraud by the 11 RFA No.108 of 2016 plaintiff. Consequently, the con current findings rejecting this plea do not suffer from any illegality. The learned Trial Court correctly answered this issue in the negative. ISSUE NO.6 Whether the suit is barred U/O 7 Rule 11 of CPC? OPD
18. Issue No.6 relates to maintainability under Order VII Rule 11 CPC. For the reasons already discussed while deciding Issue N o.2, the appellants have failed to demonstrate that the plaint was liable to rejection on any of the statutory grounds contemplated under Order VII Rule 11 CPC. The plaint discloses a complete cause of action and the suit was competently instituted against the legal representatives of the deceased. Consequently, the findings of the learned Trial Court on this issue are unexceptionable. The learned Trial Court correctly answered this issue in the negative. ISSUE NO.7 Whether the plaintiff is estopped to sue? OPD 19. Issue No.7, relating to estoppel, has also been rightly decided against the appellants. No representation, conduct, or legal bar has been shown which could operate as e stoppel against the plaintiff from instituting the suit. On the contrary, the documentary evidence of dishonoured cheque strengthens the plaintiff’s case rather than creating any estoppel against him. The Trial Court correctly answered this issue in the negative. RELIEF 20. In light of the findings on all the above issues, this Court finds that the learned Trial Court rightly decreed the suit with costs. The appellant s have failed to point out any material illegality, legal infirmity, misreading or non -reading of evidence 12 RFA No.108 of 2016 warranting interference under appellate jurisdiction. Resultantly, this appeal is dismissed. The judgment and decree dated 31.10.2015, passed by the learned Additional District Judge, Pakpattan, are upheld. No order as to costs. (Muhammad Sajid Mehmood Sethi) Judge
APPROVED FOR REPORTING
Judge *A.H.S.*