2002 PLP 1779 (CLC)

2. Briefly stated the facts of the case are that, on 27‑9‑1997, the respondent filed a suit for recovery of the amount mentioned above under the provisions of Order 37, rule 2, C.P.C. stating that the appellant is his relative, who borrowed the suit amount from him and executed a pronote dated 29‑12‑1996 (Exh.P.1.), receipt (Exh.P.2) and an affidavit (Exh.P.3); when the respondent demanded the return of the amount, the appellant refused, resultantly, the suit was filed. The appellant moved an application for leave to appear and defend, which was allowed by the learned trial Court, whereafter, on the basis of pleadings of the parties, following issues were framed:‑‑ (1) Whether the plaintiff has no cause of action and locus standi to file the suit? OPD' (2) Whether the suit of the plaintiff was false and the defendant has been unnecessarily impleaded therein, hence the defendant is entitled to special costs under section 35‑A of the C.P.C.? OPD (3) Whether the plaintiff is entitled to recover an amount of Rs.4,25,000 on the basis of promissory note from the defendant, borrowed from the plaintiff by the defendant? OPP (4) Relief.

3. The respondent examined Nisar Ahmad and Salaud Din, the marginal witnesses of the pronote, receipt and the affidavit as P.W.1 and P.W.2, while he himself appeared as P.W.3, the above documents were tendered in evidence as Exh.P.1 to Exh.P.3. Conversely, only the appellant appeared as his own witness.

4. On the conclusion of the trial, the learned Additional District Judge, giving findings on Issue No.3 in favour of the respondent and also deciding Issues Nos. l and 2 against the appellant, decreed the suit, hence this appeal.

5. Learned counsel for the appellant contends that, in the alleged legal notice, issued by the respondent to the appellant (Mark "A"), it is stated that the amount of loan has been given to the appellant as Qarz‑e Hasna besides; in paragraph No.2 of the plaint, again it is averred that the loan is Qarz‑e‑Hasna, therefore, according to the nature of loan, it only becomes payable, when the appellant was in a position to return the amount. In this regard, he has relied upon Tafheem‑ul‑Qur'an, Volume I. by Maulana Abu‑ul‑Ala Modoodi, according to which Qarz-e‑Hasna is that kind of loan, which is given for the purpose of helping another with an object that it should be payable only When the borrower is in a position to pay. He has also relied upon Habib Bank v. Messrs Qayyum Spinning Ltd. 2001 MLD 1351 and Dr. M. Aslam Khaki v. Syed Muhammad Hussain and 2 others PLD 2000 SC 225, which defines that, Qarz‑e‑Hasna is that kind of loan, given on compassionate ground, free from interest/mark‑up or service charges and repayable if and when the borrower is able to pay. It is further submitted that two marginal witnesses of the documents Exh. P.1 to Exh. P.3 are close relatives of the respondent, they are though related to the appellant, but in the cross -examination, they admitted that they have sore relations with the appellant, therefore, their testimonies to prove the execution of Exh. P.1 to Exh.P.3 are inadequate and should be ignored. It is lastly submitted that the trial Court has failed to seek the opinion of the expert about the execution of the pronote and has erroneously compared the signatures of the appellant by visually; it is patently apparent that the signature of the appellant on the EXh.P.I to Exh.P.3, are different and does not correspond to his admitted signatures, on the written statement and copy of his identity card.

6. Conversely, learned counsel for the respondent has supported the judgment and decree of the trial Court.

7. We have heard learned counsel for the parties. The contention of appellant that as the amount was given to the appellant as Qarz‑e‑Hasna, therefore, it cannot be recovered, until the appellant is in a position to repay the same and therefore, the judgment and decree of the Court below is invalid. Suffice it to say that the appellant has not taken this plea in the application for leave to appear and defend; in his written statement, he never asked for framing of any issue in this behalf, nor any evidence has been led. Submission that because the respondent in the legal notice (Mark‑A) and plaint, has described the loan as Qarz‑e‑Hasna, therefore, such admitted fact is sufficient to hold the nature of the loan as Qarz‑e- Hasna. It may be stated that. in the documents. Exh.P.1. to Exh.P.3 there is no mention, if the amount is given to the appellant as Qarz‑e‑Hasna, particularly as per Exh. P.1, the promissory note it is clearly mentioned that it shall be payable on demand meaning thereby that repayment was not left to the option of the borrower. As regard the submission that in the legal notice and plaint loan has been described as Qarz‑e‑Hasna, it may be held that merely stating the loan amount as Qarz‑e‑Hasna, would not mean that it was purely in the nature of Qarz‑e‑Hasna, as has been elaborated in the, Tafheem‑ul‑Qur'an by Abu‑ul‑Aala Moudoodi, but in fact it seems that while issuing the legal notice and drafting the plaint, learned counsel had in his mind that the amount was given free from interest, because as per 21st Century, Practical Dictionary by M. Zaman, Qarz‑e‑Hasna is defined as money lent for a loan obtained) without interest". In Qanuni‑Lughat by Tanzeel‑ur‑Rehman, Qarz‑e‑Hasna is again defined as interest‑free from loan. This clearly shows that the description of a loan as Qarz‑e‑Hasna was meant to be a loan given to the appellant, without any interest but not purely in the nature of Qarz‑e- Hasna. Moreover, as mentioned earlier, this has not been the defence of the appellant in the written statement and likewise, there is no ground in the memo. of appeal, as well, in this regard, accordingly, the objection of learned counsel for the appellant that no decree could be passed against the appellant, because of the nature of the loan being Qarz‑e -Hasna, is hereby repelled. 7‑A. For the other submission that Exh. P.1 to Exh. P.3, has not been proved‑ in accordance with law, suffice it to say that marginal witnesses of these documents have duly appeared as P.W.1 and P.W.2 and proved these documents, they have been cross‑examined at length and we do not find any discrepancies in their statements; both these witnesses are closely related to the parties and in the facts and circumstances, seems to be natural witnesses who could be present at the time, when the documents were executed; they are consistent about the venue, time and the payment of the loan to the appellant, by the respondent, and their testimonies have not been shattered in the cross-examination.

8. As regards the submission that one of the witnesses has stated that he is not on visiting terms with the appellant and, therefore, should be deemed to be untruthful witnesses and inimical towards the appellant is not well‑founded, because just being not on visiting terms, no inference can be drawn that such witness has deposed falsely against the appellant. Moreover, in the written statement, the appellant has taken the defence that he on 1‑9‑1997, when Exh.P.1 to Exh.P.3, were exhibited, was busy in connection with the engagement ceremony of his daughter and throughout the, day remained at his house and was entertaining his guests, but no evidence has been brought on the record to prove this plea of the appellant; he has not examined any of the guests, who could testify that on the day and during the time, when the appellant is stated to have executed the EXh.,P.1 to Exh.P.3 he was present at his own house.

9. The other submission that the trial Court has erroneously compared the signatures of the appellant on Exh.P.1 to Exh.P.3, with his admitted signature and has concluded that the disputed signatures pertain to him, we have also examined the signature; these tally with the signature of the appellant, which had been procured by the trial Court, and are available on the original file of the Court below; besides, we have also obtained signatures of the appellant, in the Court today and find these corresponding to Exh. P.1 to Exh. P.3. Moreover, if the appellant wanted to contradict that his signature on the pronote, etc. have been forged, he should have examined any expert in this behalf, or moved it in the Court to seek the opinion of the expert. This evidence or the attempt to have opinion of the expert by the appellant is conspicuously missing on the file. Appellant has appeared as sole witness and has not brought any evidence to corroborate his plea that signatures were forged, particularly because he was busy in connection with the engagement of this daughter on the day when Exh.P.1 to Exh.P.3 are stated to have been executed, resultantly, we find that the judgment arid decree of the trial Court is absolutely in accordance with record: No misreading or non‑reading has been established, with the result, that this appeal has no force and the same is hereby dismissed. H.B.T./M‑1298/L Appeal dismissed.