P L D 2006 Peshawar 208 (PLP)

HAMID FAROOQ DURRANI, J.

The appeal in hand is filed against the judgment and decree by the learned District Judge, Abbottabad dated 4-9-2003 whereby the suit of plaintiff/appellant, filed under O.XXXVII of C.P.C. involving recovery of Rs.45,00,000 along with interest, was dismissed.

2. The facts narrated in the plaint by the plaintiff/appellant are that the respondent obtained a loan of Rs.45,00,000 from the appellant on 25-8-1998 and in that respect executed a Demand Promissory Note for the said value. The instrument was signed by the witnesses besides the executant. It was added in the plaint that the appellant and respondent were on friendly terms due to which the appellant whole-heartedly trusted the defendant and advanced him the loan. The plaintiff, for quite some time, waited for return of the amount, so borrowed by the respondent, who finally denied his liability and refused to pay the amount obtained from the appellant. On denial of the respondent, the appellant was constrained to bring the forenoted suit which was filed on 31-7-2001. The respondent applied for leave to defend the suit on 26-10-2001. The requisite leave was allowed to the respondent on 27-2-2002 by the learned trial Court, in pursuance whereof the respondent also filed written statement on the stated date. The following issues cropped up from the pleadings of the parties: (1) Whether plaintiff has got a cause of action? (2) Whether plaintiff is estopped to sue? (3) Whether suit is not competent in its present form? (4) Whether plaint is liable to be rejected under Order VII, rule 11, C.P.C.? (5) Whether suit is bad for non-joinder and misjoinder of necessary parties? (6) Whether suit is within time? (7) Whether pro note is forged and not signed or executed by the defendant in favour of the plaintiff? (8) Whether Tanveer Ahmad son of Yunus Khan, attorney of the defendant has not been appointed in accordance with law, and he cannot defend the suit, if so, its effect? (9) Whether plaintiff is entitled to recover Rs.45,00,000 along with the interest from the defendant as prayed for? (10) Relief.

3. In support of his claim the appellant produced eight witnesses whereas the defendant relied on the evidence of two witnesses. After the close of evidence by both the parties the learned trial, Court vide judgment dated 4-9-2003, dismissed the suit of the appellant, hence this appeal.

4. Arguments of learned counsel for the parties were heard and record of the case was gone through with their assistance

5. While recording its findings the learned trial Court attended to issues Nos. 1, 7 and 9 together. The learned Court held that it was the statement of D.W.1 Nisar Khan, who stated that no cash amount was paid by the plaintiff to the defendant. The plaintiff had obtained his signatures on the disputed promissory note at the time when no other person was present. Similarly, in the opinion of the learned Court the plaintiff was not a truthful witness as regarding the factum of payment of income tax, there were contradictions between his statement and the statement of P.W. Malik Khurshid Anwar. It was also held' that the disputed promissory note, being insufficiently stamped, was not admissible in evidence under section 5 of Stamp Act. The learned Court concluded on the issues mentioned above that the plaintiff had no cause of action and he was, therefore, not entitled to the grant of decree for recovery of the suit amount. The learned trial Court also did not allow the request of the plaintiff for referring the signatures of respondent for comparison to an expert on the ground that as no payment of cash amount by appellant to respondent was proved, therefore, there was no need to have the signatures of respondent matched/verified by an expert. It is noted here that the appellant, through written application had requested the learned trial Court for summoning the respondent before the Court for the above noted purpose and while making such request the appellant also undertook to bear the cost of air fare for respondent from Dubai and back. It is also pertinent to note that the respondent did not appear before the learned trial Court personally but was defending his case through special attorney.

6. Adverting to the findings recorded by the learned trial Court in respect of statement of D.W. Nisar Khan and also the opinion of the learned Court to the effect that the said statement shattered the case of the plaintiff, we must look into the evidence produced by the plaintiff. The appellant produced Muhammad Riaz, Record Keeper of District Registration Office NADRA, Abbottabad as P.W. 1 who produced the affidavit of respondent and exhibited photocopy of the same. The said document bore the signatures of defendant besides that form `Alit of defendant was also produced in Court, which also carried his signatures. This witness went un-cross-examined to the extent of signatures of respondent. Khalid Mahmood, S.-I., Police Station Kohsar Islamabad was produced as P.W.2 who exhibited a copy of F.I.R. No.117 dated 25-6-1998 registered against the respondent and others under sections 420/468/471, P.P.C. Wasim Ahmed Khan Inspecting Officer State Bank of Pakistan, Islamabad appeared as P.W.3, who produced the record pertaining to the account of appellant jointly held with Mst. Rahim Jan and inter alia stated that an amount of Rs.20,00,000 was deposited therein on 21-3-1995. Besides the said two witnesses, Zia-ul-Anwar, Manager MCB was also brought before the Court as P.W.4, who exhibited the record pertaining to the account in the name of the appellant. The witness also stated, inter alia, that on 20-11-1995 an amount of Rs. 10,00,000 was drawn by the respondent from the account of appellant through Cheque N0.04190365. The same was stated to have been issued by the appellant. The witness also produced the other record regarding the said account. The appellant recorded his statement as P.W.5 wherein he stated the facts recorded in the plant and also exhibited the promissory note in dispute as Exh.PW5/1. The appellant, inter alia, stated the fact that he had earlier advanced a sum of Rs.10,00,000 as loan to the respondent which he duly returned. Due to the said transaction he developed more confidence in the respondent which resulted in the transaction in dispute. At the end of his statement he prayed for a decree for recovery of the suit amount. In the cross-examination part the appellant clearly stated that before payment of Rs.45,00,000 to the respondent he arranged the amount from the market as he was an investor and was dealing in the property business at Islamabad. He also stated that an amount of Rs.20,00,000 was available with him, for lending to the respondent, which was in his possession on behalf of his mother. His mother was stated to have sold a plot in the year 1997 and the amount was received as a consideration for the said sale. The plaintiff/appellant stated that he had brought the cash amount of Rs.45,00,000 from Rawalpindi using his own car while he was accompanied by the witnesses namely Tanveer-ul-Haq and Khurshid. He further stated that after payment of the amount to the respondent he along with the witnesses and the respondent went to the Notary Public for the attestation and entry of the promissory note in dispute. Malik Muhammad Sarwar Advocate/Notary Public, Abbottabad was produced as P.W.8 who confirmed the attestation of the same and also admitted his signatures. The marginal witnesses to the promissory note namely Malik Khurshid Anwar and Tanveer-ul-Haq were produced as P.W.6 and P.W. respectively, who were cross-examined on behalf of the respondent at length. The statements of the said two witnesses were almost similar which complemented the claim of the appellant. The witnesses were unanimous on the points of payment of an amount of Rs.45,00,000 by the appellant in favour of the respondent, the execution of promissory note Exh.PW5/1, their signatures on the said instrument as marginal witnesses and also the attestation of the promissory note by the Notary Public. The exhaustive cross-examination on behalf of the respondent, to which the two witnesses were subjected, could not bring forth any material discrepancy or contradiction inter se.

7. We, therefore, hold that the plaintiff/appellant was able to prove the execution of the promissory note in dispute and also the fact of money changing hands between the appellant and the respondent. Under Articles 17 and 79 of Qanun-e-Shahadat Order the plaintiff/appellant was obliged to produce only two marginal witnesses to the deed which he has successfully done. The findings of learned trial Court to the extent of disbelieving the witnesses on account of minor discrepancies and also due to the relationship of witness Malik Khurshid Anwar with the appellant, are not worthy of sustenance.

8. Under Article 84 of the Qanun-e-Shahadat Order the learned trial Court had the discretion to itself compare the signatures of respondent who had denied the execution of the Promissory Note. At least three such documents were available before the learned trial Court, for comparison of the signatures of the respondent, which could have been resorted to by the learned Court. Those included the disputed Promissory Note, a photocopy of national identity card held by the respondent and the special power of attorney executed by the respondent in Dubai wherein the signatures of respondent were duly attested by the concerned official of Consulate General of Pakistan. The learned trial Court had, however, not attended to the request of the plaintiff appellant for the requisite comparison or sending the signatures to the expert without assigning any reason for the same. Only a passing remark regarding non-payment of money by the appellant to the respondent has been made a reason for the said denial.

9. The learned trial Court has also declared the promissory note in dispute, as being inadmissible in evidence, on the ground that it was not sufficiently stamped. In this regard the learned Court observed that stamp of minimum amount of Rs.50 was required to be affixed on the promissory note, which was not done. Dealing with this aspect of the matter, we observe that the payment of stamp duty was not a question between the parties to the suit rather the same was in between the State/Government and the party who was to use deficiently stamp document. Reliance in this regard is placed on judgments reported as PLD 1978 SC 279 and PLD 2003 Lah.

173. The learned trial Court could have ordered the plaintiff/appellant for making up the deficiency at any time. At this juncture we order the appellant to make up the deficiency, if any, in the stamp duty affixed on the D.P. Note within one month. The same, if not paid, shall be recoverable from the appellant as arrears of land revenue.

10. Issues Nos. 2, 5 and 6 were decided against the respondent. Being based on preliminary legal objections and properly attended by the trial Court, the findings on the said issues do not require interference by this Court. Similarly, the findings on issues Nos. 3, 4 and 8 are also held to have been decided in accordance with law.

11. For what has been discussed above, we hold that the plaintiff/appellant was entitled to a decree for recovery of Rs.45,00,000 on the strength of promissory note dated 26-8-1998, executed in his favour by the respondent on the said date. Keeping in view the provisions of section 79 of the Negotiable Instruments Act, 1881, we further hold that the appellant/plaintiff is also entitled to receive profit/interest @ 6 per centum per annum on the amount mentioned in the promissory note i.e. Rs.45,00,000 from the date of the Note till actual realization of the same.

12. Consequently, on acceptance of the appeal a decree for recovery of Rs.45,00,000 along with 6% profit/interest, held above, is passed in favour of the appellant, with costs. H.B.T./169/P Appeal accepted.