2011 PLP 496 (YLR)

SYED SAJJAD HASSAN SHAH, J

Akbar Khan and six others have challenged the judgment and order passed by the learned Additional District Judge, Peshawar dated 3-12-2001, whereby, appeal filed against the judgment and decree passed by the learned Senior Civil Judge, Peshawar dated 23-6-2000 was dismissed.

1. Brief facts of the case are that Akbar Khan, the plaintiffs/petitioners had instituted a suit against the defendants/ respondents for recovery of US $ 3000 along with recovery of Rs.29,295 as compensation, as averred in the plaint that one Niaz Ali son of Noor Muhammad was studying in an educational institution at USA, US $ 3000 was handed over to defendant/respondent No.1, on 18-1-1993 prepared a draft and sent to Niaz Ali through defendant No.2, was acting being the agent of defendant No.1, Niaz Ali had to receive the said amount from defendant No.2 being agent of defendant/respondent but said Niaz Ali died in a road accident on 7-3-1993, prior to collecting the said amount from defendant/respondent the plaintiff demanded the return of amount from the said respondents/ defendants, but they were informed that the Payment had been made to the defendant / respondent No.3. The defendants/ respondents contested the suit by filing their written statement, evidence recorded, while seized of the matter, the learned trial Court dismissed the suit. Feeling aggrieved filed an appeal, same was also dismissed, hence filed the instant revision petition.

2. The learned counsel appearing on behalf of the plaintiffs/petitioners contended that the disputed amount was sent to Niaz Ali deceased to cater his expenses, studying in a University at America. The amount was sent through defendant/respondent No.1, but meanwhile, Niaz Ali had expired. The defendant/respondent No.1 was duly informed and directed to stop the payment, in pursuance, thereof, sent a telex to the defendant/respondent No.2, but latter on, it transpired that amount to have allegedly been received by deceased Niaz Ali, prior to his death and to this effect a draft has been produced on record, duly signed by Niaz Ali, deceased. He further argued that Niaz Ali died, after acknowledging the receipt of the said amount.

3. The learned counsel for the defendants/respondents while rebutting the arguments of learned counsel contended that as per record Niaz Ali had received the disputed amount prior to his death and duly signed in token of the receipt of the said amount, the same has been admitted by P.W.3 that Exh.P.W.3/X-1, was duly signed by Niaz Ali and further admitted the receipt of amount by Niaz Ali, as mentioned in Exh. P. W.3/X-2.

4. Arguments of the learned counsel of the parties considered and record carefully perused.

5. The perusal of the record reveals, though the plaintiffs/petitioners sought the recovery of disputed amount against the defendants/respondents, their contention was repelled by the defendants/respondents, in their written statement, they have categorically denied the claim of the plaintiffs/petitioners and asserted that the bank draft sent for Niaz Ali Khan deceased, received by American Express Bank Limited New York and the same was signed by Niaz Ali and deposited in his account, which was maintained in the concerned University.

6. In support of the claim of the plaintiffs/petitioners, they have produced P.W.1. Lal Zada, testified about the legal heirs of Niaz Ali deceased. P.W.2 Haji Muhammad Habib also supported the statement of P.W.1, further deposed that Niaz Ali was studying in America, who had passed away in America. Akbar Khan, one of the plaintiffs, in his own capacity and on behalf of rest of the plaintiffs/petitioners was examined as P.W.3, no doubt he has denied the receipt of said amount by his brother Niaz Ali, deceased. Besides, brought certain record on case file, however, it is also stated by the witness that Niaz Ali died on 7-3-1993 and the payment was shown to have been made on 26-5-1993, thus, he had not received the amount, but curiously enough the witness in his cross-examination confronted with the signature made on original draft by late Niaz Ali, which had been admitted as correct and that of his brother Niaz Ali. Moreso, he has also admitted that the payment of the amount as mentioned in the draft was deposited in the account of University maintained by late Niaz Ali. The draft was admitted in the evidence, as Exh. P. W.3/X-1 and statement of account, wherein, the payment of said draft has been incorporated, admitted as Exh. P. W.3/X-2. The arguments of learned counsel that since he was not in attendance on the day of recording of the statement by the learned trial Court, witness had made no such statement and his admission is incorrectly recorded in his statement. This argument of learned counsel is immaterial for the reason that, had this statement of P.W.3 incorrectly recorded, under the law he could have repudiated on the same or following day or any time before the decision of the case. Notwithstanding, that in memo of appeal, it was stated that P.W.3 has made no such statement but the said ground was abandoned during the course of arguments, therefore, no findings rendered by the learned appellate court, which amounts estoppel by conduct of the plaintiffs/petitioners. This argument of the learned counsel that the admission made by P.W.3/plaintiff, cannot be brushed aside, as the same was made during the course of judicial proceedings, blessed with statutory presumption under Article 129(e) of the Qanoon-e-Shahadat, reproduced as follows:-- Article-129

Court may presume existence of certain facts:

The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. (a) . (b) . (c) . (d) . (e) that judicial and official acts having been regularly performed;

7. The said statement has been recorded under Order XVIII Rule 4 of the C.P.C. which reads as follows:-- O.18, Rule

4. Witness to be examined in open court

The evidence of the witnesses in attendance shall be taken orally in open court in the presence and under the personal direction and superintendence of the Judge.

8. It is abundantly clear that whatever stated by the witness was in the presence and under the personal direction and superintendence of the judge, whatever, was narrated, same had been recorded, now the proceedings conducted by the learned trial Court in accordance with the above referred procedure cannot be questioned, as by now, the petitioner has challenged the same at the revisional stage. If the evidence is taken in the language being not understood by the witness, the evidence so recorded shall be interpreted to the witness in which it is given, as provided in the provisions of Order 18 Rule 6 of the C.P.C., reproduced as under:-- O.18, Rule-6. When the deposition to be interpreted, where the evidence is taken down in a language different from that in which is given, and the witness does not understand the language in which it is taken down, the evidence as taken down in writing shall be interpreted to him in the language in which it is given.

9. The rule ibid provides the mode When the evidence is recorded in the language which is not being understandable by the witness, the court is bound to adhere the law referred to above, in case it has not been done so, the P.W.3 was legally entitled to have re-course in the same court and in case of refusal, he can question the same in the higher forum but the witness had not opted to seek his proper and adequate remedy at the relevant time, therefore, at this stage, it cannot be agitated. Apart from the above said requirements, it is further provided under Order XVIII Rule 5 of the C.P.C., reproduced as under:-- O.18, R.5. How evidence shall be taken in appealable cases.

In cases in which an appeal is allowed the evidence of each witness shall be taken down in writing; in the language of the court, by or in the presence and under the personal direction and superintendence of the Judge, not ordinarily in the form of question and answer, but in that of a narrative, and, when completed, shall be read over in the presence of the Judge and of the witness, and the Judge shall, if necessary, correct the same, and shall sign it.

10. The provisions of rule ibid, further made it mandatory to the court that the evidence shall be read over to the witness and the judge shall correct the same, if necessary and shall sign the same.

11. In the above referred provision of law, no possibility of recording incorrect statement or something other than the deposition of the witness, because, the law provides ample safeguard to the deposition of a witness, recorded in the court, therefore, it is unbelievable that any exaggerated material had been added to the statement of the witness. Moreso, at the risk of the repetition, it is observed that the plaintiff had not questioned or objected after recording of his statement before the trial Court as well as before the learned appellate court at the time of arguments. Eventually, no findings have been recorded by the learned courts below. At this stage, it cannot be agitated that the admission referred to above had not been made by the plaintiff/petitioner.

12. No other ground has been agitated nor any evidence has been produced by the plaintiff/petitioner to substantiate his claim, therefore, the judgments and decrees of both the learned courts below being lawful and not suffering from any legal error, hereby, maintained.

13. This petition is being without any substance, hence, dismissed. No order as to costs. A.R.K./347/P Petition dismissed.