2003 PLP 1362 (YLR)

Date of hearing: 6th November, 2002. Respondent filed a suit for recovery against the petitioner to the tune of Rs.60,

000. It is the case of the respondent that petitioner vide agreement dated 25‑10‑1986 Exh.P.1 had borrowed this money on the promise to repay the amount at the demand of the respondent and also a sum of Rs.750 per month as interest thereupon. Petitioner thereafter backed out resultantly suit was brought; suit was contested by the petitioner who denied the agreement and also that no loan has been borrowed from the respondent; issues were framed; parties were put to trial. In order to prove the agreement, the petitioner examined Subedar Gul Muhammad (P.W.2), who is scribe of the document. P.W.3 is Muhammad Bashir, one of the margins witnesses and P.W.4 is bank officer who has placed on the record cheques Exh.P.11 to Fxh.P.29, which cheques according to the respondent were issued by the petitioner in discharge of his liability to pay the interest of Rs.750 per month.

2. Conversely, respondent himself appeared as D.W.1, after conclusion of trial, learned trial Court allowed the suit, holding that respondent has proved Exh.P.1 and also payment of loan to the petitioner. Aggrieved by the above, the petitioner preferred an appeal but without any success.

3. Learned counsel for the petitioner contends that in order to prove Exh. P.1, the execution of which has been denied by the petitioner, the respondent has examined Subedar Gul Muhammad (P.W.2), who in his statement, has categorically stated that the document, was neither signed by the petitioner, nor by Bashir Ahmed and Muhammad Amir, the marginal witnesses in his presence. P.W.2 Muhammad Bashir in his cross‑examination has also admitted that Exh. P.1, was not signed by the petitioner in his presence, rather he had signed the said document at his own house. Both the Courts below have grossly misread the statement of these witnesses.

4. Conversely, learned counsel for the respondent states that Subedar Gul Muhammad and Bashir Ahmed P.Ws. have admitted their signature on Exh.P. 1 and therefore, the execution of this document stands proved against the respondent. It is also submitted that because of issuance of the cheques Exh.P.11 to Exh.P.29, as the petitioner has given no plausible explanation, as to why the amount covered thereby was given to the respondent therefore, it should be presumed that cheques were issued for repayment of monthly instalment of interest. It is further contended that assuming that Exh.P. 1 has not been strictly proved by two witnesses, yet it was in the nature of promissory note which does not require any attestation by the witnesses. In this behalf, he has relied upon PLD 1956 Dacca

14. It is argued that the scribe of a document, is a competent witness to prove the execution thereof, as is in the present case, it has been proved through P.W.2; agreement Exh.P.1 has never been challenged by the petitioner and no cancellation has been sought by him; it is stated that it is incumbent upon the petitioner to have sought the opinion of the handwriting expert which has failed to do.

5. I have heard learned counsel, for the parties. Undoubtedly, in order to prove the execution of a document when disputed, it is necessary that the persons deposing in proof of the execution, should be the direct witnesses of the very execution by the person, to whom the execution has been attested. In the present case, neither Gul Muhammad P.W.2 nor P.W.3 have stated that the Exh.P.1 was executed by the petitioner in their presence, rather both of them have said to the contrary. Moreover, the second marginal witness namely Muhammad Amir has not been examined by the respondent and there is no plausible explanation, for this vital omission.

6. The argument that Exh.P.1, should be treated as promissory note as there is no requirement of attestation by any witnesses, suffice it to say that without conceding this proposition, the legal position remains the same that still the respondent was required to prove Exh.P.1 through the direct evidence irrespective of its nature, but both his witnesses, themselves have stated that they were not present when the same was signed by the petitioner. Therefore, this does not improve the case of the respondent.

7. For the argument of the respondent's counsel that petitioner should have sought the opinion of the handwriting expert to disprove the execution, suffice it to say that no request was even made by the petitioner in that behalf to prove the execution therefore, no inference on account of the above can be drawn against the petitioner. For whatever has been stated above, it is a clear case of misreading and non -reading of the statement of P.W.2 and B P.W.3, who have failed to prove the execution of Exh.P.1, yet have been held by the Court otherwise. Therefore, the judgments and decrees passed with this error cannot sustain in law. In the light of above, by allowing this petition, the impugned judgments and decrees of the Courts below are set aside with the result that the suit of the respondent stands dismissed. M.H./S‑570/L Revision allowed.