2020 PLP 103 (MLD)

ALI BAIG, J.

This civil 1st appeal is directed against the impugned judgment/decree dated 26-4-2018, passed by the learned Civil Judge 1st Class No. 1 Gilgit in Civil Suit No. 32/2008, whereby the learned trial court has dismissed counter claim of the present appellant/ defendant as well as suit of the present respondents/ plaintiffs.

2. Brief but relevant facts necessary for disposal of this civil 1st appeal are that the present respondents/plaintiffs instituted a suit for rendition of account against the present appellant/defendant in the trial court claiming that the respondent/defendant had deposited an amount of Rs. 200,000/-(Two lacs) with the plaintiffs/respondents for the purpose of business. The said amount was received back by the defendant/ appellant from time to time, from the plaintiffs/ respondents in the shape of cash, cloths, one fridge and one goat etc but the appellant/ defendant now through fake receipt is claiming extra amount without rendition of account, therefore, a decree for rendition of account may be granted in favour of the plaintiffs/respondents and against the defendant/ appellant.

3. The present appellant/defendant contested the suit by way of filing counter claim in the shape of written statement wherein the defendant/appellant has claimed that vide agreement dated 12-01-2004, the defendant/appellant had given Rs.500,000/-(five lacs) to the respondent/plaintiff on the condition that the respondent/plaintiff shall return the disputed amount to the defendant/appellant within one year, failing which the plaintiffs/respondents shall pay the disputed amount to the defendant/appellant along with 30% interest.

4. Out of divergent pleadings of parties the learned trial court has framed the following issues:?

1. Whether the suit of plaintiff is within time? OPP

2. Whether the defendant had deposited a sum of Rs. 200,000/-with the plaintiff which he has received from the plaintiff from time to time? OPP

3. Whether the defendant has received cloth worth of Rs. 30,000/-, one fridge and one goat? OPP

4. Whether the plaintiff has borrowed a sum of Rs. 500,000/- from defendant vide agreement dated 12-01-2004 which is still outstanding? OPD

5. Relief?

5. After framing of afore mentioned issues the learned trial court directed the parties to adduce their evidence as they wish to adduce. Accordingly, the plaintiffs produced two oral witnesses namely Fida Hussain son of Mohammad and Rasool Mir son of Mohammad Riaz besides recording of their statement though their attorney namely Naveed. Likewise the appellant/defendant got recorded his statement and produced three oral witnesses namely Dinar Khan, Shah Khan and Nabi Khan. The appellant/ defendant has also produced documentary evidence Exh D/1 i.e. an unregistered agreement dated 12.01.2004.

6. On conclusion of trial the learned trial court after hearing arguments on behalf of both the parties has dismissed the suit of the plaintiffs/respondents as well as counter claim of the present appellant/ defendant.

7. It is pertinent to mention here that the plaintiffs/respondents have not filed any appeal against the impugned judgment/decree and present appellant/defendant has preferred the instant appeal feeling aggrieved by the impugned judgment/decree passed by the learned trial court.

8. It may also be mentioned here that during pendency of suit the plaintiff namely Hamayoon Shah had expired, therefore, L.Rs of the above named plaintiff were impleaded as plaintiffs/respondents in the suit by the learned trial court.

9. The learned counsel appearing on behalf of the appellant contended that the impugned judgment/decree dated 26-4-2018, passed by the learned trial court is contrary to law and facts on the record of the case, as such the impugned judgment passed by the learned trial court is not maintainable and liable to be set aside. The learned counsel for the appellant further argued that the appellant/defendant had proved his counter claim by producing oral and documentary evidence in the trial court, but the learned trial court has wrongly dismissed the counter claim of the appellant. The learned counsel for the appellant further argued that the impugned judgment/decree passed by the learned trial court is result of misreading and non-reading of evidence of the parties, as such the impugned judgment decree passed by the learned trial court is not sustainable in the eye of law.

10. On the other hand the learned counsel for the respondents/ plaintiffs vehemently opposed this appeal and controverted the arguments advanced by the learned counsel for the appellant by contending that the appellant/defendant has failed to produce two marginal/attesting witnesses of document Exh D/1 as required under Articles 17 and 79 of Qanun-e-Shahadat Order, 1984. Thus, the learned trial court has rightly dismissed the counter claim of the appellant/ defendant vide the impugned judgment/decree which may be maintained. The learned counsel for the respondents further argued that the counter claim/suit of the appellant was hopelessly time-barred, therefore, the learned trial court has rightly dismissed the counter claim of the appellant.

11. We have heard learned counsel for the parties at full length and gone through the record of the case, evidence and findings recorded by the learned trial court with the able assistance of the learned counsel for the parties.

12. Perusal of record show that the appellant/defendant has filed counter suit/claim on the bases of unregistered agreement dated 12.01.2004, Exh. D/1 and the appellant/ defendant has relied mainly on the aforesaid document/agreement Exh D/1. From perusal of agreement Exh D/1, it reveals that two attesting witnesses namely Dinar Khan and Shopkeeper Hameed have put their signatures on the aforesaid document as marginal witnesses but the appellant/defendant has produced only one attesting/marginal witness of the afore said document namely Dinar Khan in the trial court and he has failed to produce the other attesting witness namely Hameed in the trial court. The appellant has also failed to produce scribe of aforesaid document in the trial court as marginal/ attesting witness as required under Articles 17 and 79 of the Qanun-e-Shahadat Order 1984. It is mandatory that a document related to financial or future obligation must be attested by two male witnesses or one male and two female witnesses and the same shall be proved accordingly. In the present case the defendant/appellant has produced only one attesting witness and even the appellant has not bothered to produce scribe of the aforesaid document as attesting witness in the trial court. Thus the document/agreement dated 12-01-2004 shall not be considered/taken as proved or could be used in evidence as it has not been proved in accordance with requirement of Article 79 of the Qanun-e-Shahadat Order, 1984. Hence, the appellant has failed to prove execution of an agreement deed dated 12-01-2004, Exh D/1. In this connection wisdom is drawn from the reported judgments of the Hon'ble Supreme Court of Pakistan reported in PLD 1996 SC 256 and PLD 2011 SC 241.

13. Moreover, the disputed agreement Exh D/1 was executed/ prepared on 12-01-2004 and counter claim/suit has been filed by the defendant/appellant on 19-8-2008, in the trial court. Since, admittedly, case of the appellant was governed by Article 57 of the limitation Act, which provides a period of three years to file suit for recovery of amount which period is to be reckoned from the date when the money was lent i.e. 12-01-2004, thus the counter claim of the appellant is hopelessly time-barred.

14. For what has been discussed above, we find no substance in the instant appeal. The impugned judgment/decree passed by the learned trial court is correct and in accordance with law, therefore, the instant civil 1st appeal stands dismissed. Parties are left to bear their own costs. File. SA/111/GB Appeal dismissed.