2012 PLP 23 (MLD)

SYED SAJJAD HASSAN SHAH, J.

Through the instant revision petition, the petitioner-defendant has called in question the judgment and decree dated 19-5-2009 passed by learned Additional District Judge-III, D.I.Khan whereby the appeal filed by the respondents-plaintiffs was accepted, the judgment and decree dated 25-10-2008 of learned Civil Judge-VIII, D.I.Khan was set aside and suit of the respondents-plaintiffs for recovery of Rs.1,20,000 was decreed.

2. The facts giving rise to the instant revision petition are that the respondents-plaintiffs filed a suit against the petitioner-defendant for recovery of Rs.1,20,000 which was given as loan to the petitioner- defendant after executing a receipt dated 3-4-2003.

3. The petitioner-defendant contested the suit by filing his written statement. The learned trial Court framed issues arising out of divergent pleas of the parties raised in their pleadings. The parties produced their pro and contra evidence. After hearing the arguments, the learned trial Court dismissed the suit of the respondents- plaintiffs vide judgment and decree dated 25-10-2008.

4. Feeling aggrieved from the judgment and decree of the learned trial Court, the respondents- plaintiffs filed appeal which was accepted by learned Additional District Judge-III, D.I.Khan vide judgment dated 19-5-2009 and while setting aside the judgment and decree of the learned trial Court, the suit of the respondents-plaintiffs was decreed as mentioned above. Hence, the instant revision petition by the petitioner- defendant.

5. The learned counsel for the petitioner-defendant contended that the respondents-plaintiffs could not prove the payment of the disputed amount to the petitioner-defendant and they also failed to prove the execution of receipt dated 3-4-2003 by the petitioner-defendant. He further contended that the receipt (Exh.P.W.1/1) stated to have been scribed by the petitioner-defendant and was signed by marginal witnesses but they have not proved the same as required under the law. He further contended that both the parties are closely related, however, the execution of payment of disputed amount is fake and fictitious hatched by the respondents-plaintiffs to extort money. He further contended that none of the attesting witnesses has been produced to substantiate the execution of receipt, thus, the respondents-plaintiffs have not succeeded to furnish the legal proof in support of their claim. The learned counsel further argued that the suit of the respondents- plaintiffs is time barred and the learned appellate Court misconceived the material available on record and wrongly decreed the suit.

6. As against that, the learned counsel for the respondents-plaintiffs contended that the respondents-plaintiffs successfully discharged their onus of proof as per requirement of law. He further contended that both the parties are closely related, therefore, there is no likelihood of any fraud committed by the lady respondents-plaintiffs. He further contended that when the document was exhibited in evidence, the petitioner- defendant did not question its validity, propriety and genuineness. Even he has not objected about the signatures affixed on the document Exh.P.W.1/1 by the petitioner-defendant and the marginal witnesses. He added that in such eventuality, the respondents-plaintiffs are under no obligation to produce the witnesses of the said deed notwithstanding that they were dead at the time of trial. He further contended that prior to institution of suit, the petitioner-defendant was reluctant to pay the disputed amount on persistent demand made by the respondents-plaintiffs. While elaborating his arguments, the learned counsel pointed out that in receipt (Exh.P.W.1/1) the petitioner-defendant promised that an amount of Rs.1,20,000 would be returned soon after the sale of the plots, however, he has not paid the said amount and according to the respondents-plaintiffs, a week prior to the institution of suit, the petitioner-defendant has categorically refused to return the disputed amount.

7. I have considered the arguments of learned counsel for the parties and carefully perused the record.

8. The learned counsel for the petitioner- defendant restricted his arguments to the following points:-- (a) that the respondents-plaintiffs have not proved the execution of receipt (Exh.P.W.1/1), (b) that the marginal witnesses of the document (Exh.P.W.1/1) have also not been produced to testify about the said document, however, statedly they have passed away but the respondents-plaintiffs failed to prove this fact too, and (c) that the suit of the respondents-plaintiffs is time barred.

9. Coming to the proof of receipt (Exh.P.W.1/1), suffice it to say that the receipt was exhibited in the statement of Syeda Nadia Hassan (P.W.1). The receipt went unquestioned, because its validity, authenticity, scribing and signing by the petitioner-defendant has not been challenged by raising available objections, thus, there is no need to further attend this controversy because it has been set at rest by the august Supreme Court that when the document has been exhibited in evidence without any objection by the opposite party, the same is to be deemed as proved in all respects. It is required that objection as to authenticity of proof to be taken at earlier stage and document once admitted in evidence, objection against admission cannot be allowed at any subsequent stage. In the case of Malik Din and another v. Muhammad Aslam (PLD 1969 SC 136) it was held that:-- "With regard to the first contention, it will be sufficient to state that the objection regarding the defect, if any, in the method of proof of the document, cannot be raised at this stage. For, the document was admitted into evidence, without any objection, in the trial Court. It is now well settled that an objection, as to the formality of proof, must be taken at the earliest stage and if it has not been taken then, it cannot be allowed to be taken at the appellate stage." With a little distinction, the same view has been expressed in the case of Abdullah and 3 others v. Abdul Karim and others (PLD 1968 SC 140) wherein a ruqqa written by the vendor to the partition according to which share of vendees was entered in the mutation. When the ruqqa was exhibited in evidence, no objection was raised at the relevant time. After realizing the facts and circumstances of the case, the honourable Supreme Court laid down the rule which is reproduced as under:-- "A strictly formal proof might or might not have been forthcoming had it been insisted on at the trial." The record in the present case does not also disclose that any objection was taken by the pre-emptors to the proof of this document when it was produced in Court by the counsel for the vendees and marked as an exhibit. The document not having been objected to must be deemed to have been admitted and, as such, the trial Court was clearly wrong in excluding it from consideration on the ground that it had not been formally proved. The document having been marked as an exhibit without objection became admissible in evidence and was rightly taken into consideration by the High Court. There can be no doubt as to the genuineness or admissibility of this document, for, it is not disputed that it forms part of the mutation record and, indeed, was one of the documents upon which the mutation of sale was actually entered. The pre-emptors have also received some benefit from this document to the extent that the share sold to group No.1 has been held to be indivisible, because, the proportion in which the price was contributed by the members of this group had not been specified therein, although it was stated that the vendees of this group had also purchased "ba-hissa baraber", i.e. in equal shares. The pre-emptors cannot, therefore, now be allowed to repudiate this document which forms the basis of the mutation in their own favour." Similar proposition of law has been expounded in the case titled Ghulam Muhammad v. United States Agency for International Development (U.S.Aid) Mission, Islamabad and another (1986 SCMR 907) wherein it has been held that:-- "It was added that where a document has been admitted into evidence without any objection in the trial Court, it is now well settled that an objection as to the formality of proof, must be taken at the earliest stage and if it has not been taken then it cannot be allowed to be taken at the appellate stage." Similarly, in the case titled Haji Abdullan and 10 others v. Yahya Bakhtiar (PLD 2001 SC 158), it was held that:-- "It is worth mentioning that the prime contention as agitated on behalf of the applicants seems to be devoid of merit that Exhs.A/1 to A/9 and Exh.A/11 being inadmissible should not have been considered for the reasons that the authenticity and genuineness of the said documents were never challenged before the learned trial Court and, in our considered opinion, it is too late to challenge the admissibility of the said documents which could have been conveniently challenged at the opportune moment. No suggestion whatsoever was made to challenge the authenticity of Exh.A/11 or its contents. We are afraid at this belated stage no objection regarding the authenticity of said documents can be raised." In the case titled Muhammad Akhtar v. Mst. Manna and 3 others (2001 SCMR 1700), it was held that:- "The factum of transfer of land by way of 'Habia-bil-Iwaz', constrained relationship between Mst. Manna and her husband Khushi Muhammad and denial of authenticity for transfer of land went unchallenged which amounts to admission on the part of petitioner." In view of the law referred to above, the execution of document is fully proved and at this juncture, the petitioner-defendant cannot raise any objection pertaining to the said document.

10. As far as objection No.2 ibid is concerned, it is deposed by Mst.Sania Hassan (P.W.3) in her cross-examination that both the witnesses are dead. Mst.Sadia Hassan (P.W.4) has also testified in her examination-in-chief that on their demand for return of the disputed amount, the petitioner-defendant has been giving assurance for three years that after sale of the plot, he would return the amount, however, in the meanwhile, the witnesses of receipt have expired. The respondents- plaintiffs proved the death of witnesses in their statements recorded during the trial Court, thus, they have fulfilled the requirements contained in Article 84 of Qanun-e-Shahadat Order, 1984. This objection of the petitioner-defendant is also without substance and does not hold field, therefore, it is not for worth consideration.

11. In reply to third question, it is not out of place to say that the averments made in paragraph 3 of their plaint by the respondents-plaintiffs are reproduced below for ready reference:-- In support of above assertions, the respondent-plaintiff (P.W.1) alluded that the petitioner-defendant is their maternal cousin, he visited their house and demanded loan from the respondents-plaintiffs that he is in dire need of money because he would purchase a plot at Rawalpindi and would sell it which would fetch much more profit, as such, he would return the amount of loan to them. On this, he was given a sum of Rs.1,20,000 and scribed a receipt on 3-4-2003 which was duly signed by the marginal witnesses including the petitioner-defendant. It is further stated that time and again the return of loan was demanded on which the petitioner-defendant sought certain time for payment but at last, a week prior to the institution of suit, he flatly refused to pay the said amount. The entire statement including the scribing of receipt and affixation of signatures of the petitioner-defendant and the witnesses was not cross-examined on behalf of the petitioner-defendant. Similar statement has also been given by other witnesses. However, no question was put to witnesses that their stance is incorrect and they are falsely deposing. The petitioner-defendant had neither scribed nor signed the receipt nor he received the amount. It has been held in the dictum laid clown in 2001 SCMR 1700 that it amounts to an admission as envisaged in Article 31 of Qanun-e-Shahadat Order.

12. The last point is of limitation. The learned trial Court while deciding the suit rendered its findings that the suit of the respondents-plaintiffs is time barred, as the time would run from the date of receipt and the suit has been brought beyond the period of three years, therefore, the same is barred by law of limitation. The findings rendered by the learned trial Court are not backed by any law, rightly so, that no reference of law has been made while discussing issue No.3 pertaining to the plea of limitation. The circumstances of the instant case are quite different from the circumstances which are enumerated for the purpose of period of limitation in Articles 57, 58 and 59 of Limitation Act, because perusal of receipt shows that the petitioner-defendant in his receipt (Exh.P.W.1/1) not fixed the time of payment except that he would sell the plot as soon as possible on profit basis and then would return the said amount to the respondents-plaintiffs. The plot is situated at Rawalpindi.

13. The respondents-plaintiffs being parda observing ladies were not aware of the ulterior motive of the petitioner-defendant. At his request, they have paid the amount. The receipt was executed by the petitioner- defendant and the attesting witnesses have expired and the witnesses produced by them testified the receipt of amount as well as execution of receipt. There is nothing brought by the petitioner-defendant regarding purchase and sale of the plot and if it is sold, for how much price. In absence of the material facts, the averments made in the plaint by the respondents-plaintiffs with respect to the refusal of the petitioner-defendant to pay the amount seem to be genuine, as they have asserted in Paragraph-3 that initially the petitioner-defendant was reluctant to pay but a week prior to the institution of suit, he flatly refused to pay the amount. The petitioner-defendant though has not admitted this version, however, he has, not given the detail reply of the assertions of the respondents-plaintiffs. Similar statement has been made by Syeda Nadia Hassan (P.W.1) but the same has not been cross examined. Besides, it was further added in the cross examination that at the time of obtaining loan by the petitioner-defendant, no period was fixed for its return, however, the petitioner-defendant assured that he would purchase plot from this amount and after selling it, would return the amount. Similar statement was made by Syeda Sadia Hassan (P.W.2) which statement was also not cross-examined. It is crystal clear that the petitioner-defendant intentionally avoided the payment for a period of four years, for the reason that respondents-plaintiffs would be unable to recover time barred loan.

14. It is discernable from the afore-stated material available on file that this case is not of simplicit recovery of amount, however, the petitioner-defendant had promised to pay the loan after sale of plot. Here, the sale of plot can be effected within three years or thereafter but it is amazing that so far no document or evidence has been brought on record to substantiate the claim of petitioner-defendant of purchase and sale of the plot, thus, no provision is available in Limitation Act, 1908 to coup with the situation-in-hand, as such, I am constrained to have resort to residuary Article 120 of the Limitation Act which provides six years time when no time has been prescribed to meet any situation and time would be reckoned when the right assumes. To the facts of the instant case, the application of Article 120 ibid seems to be proper and lawful, as there is no other Article to be pressed into service. In this way, the suit has been brought within the above mentioned period which cannot be treated as barred by time. In alike situation, the ratio laid down in the case titled West Pakistan Water and Power Development Authority v. Sohrabji and sons and another (1986 CLC 2592) is as under:-- "In view of this legal position the obligations between the parties were completely changed and the charge was created on purchase money whether it was in the hands of the appellant; or any other person. The respondent No.1 was to follow the purchase money on which a lien was created for the claim of the respondent No.1. In such circumstances the case could not be governed by Articles 51, 52 or 53 of the Limitation Act, and as no provision has been made to cover such a situation, the residuary Article 120 shall be applicable. Under the residuary Article 120 suit can be filed within six years from the date when a right to sue accrues. The right of the respondent No.1 to the said amount of Rs.1,10,806-11 independent of the transaction it had with the Company was never disputed. Right to sue could only secure if there is infringement of right of at least a clear and unequivocal threat to infringe that right is made by the defendant." This judgment is based upon the dictum handed down in the case titled Hakman and others v. Mst. Satto (PLD 1958 (W.P.) Lahore 936) wherein it has been held that:-- "It is true that the provisions of the statutes of limitation must be applied without regard to equitable considerations. Those provisions are founded on the policy of law which, in the interests of the community as a whole, requires that there should be some point after which old and ancient disputes should not be agitated. The periods of limitation prescribed in pursuance of such a policy must necessarily, at least in some cases, be artificial and arbitrary and must be applied regardless of hardship in individual cases. These considerations, however, cannot apply to a case where a particular provision in a statute of limitation is not clear and definite. In construing such provisions considerations of justice and equity cannot be ignored. When more than one interpretation is fairly and reasonably possible, that which leads to manifest absurdity or injustice must be avoided. It would be a lamentable and intolerable state of law if it were not so."

15. In the circumstances of the instant case, the suit of the plaintiffs-respondents would be covered by Article 120 of the Limitation Act, as there is no other Article applicable to the instant case. The petitioner- defendant has failed to rebut the claim of the respondents-plaintiffs by any cogent and convincing evidence, therefore, the respondents-plaintiffs succeeded to prove their case on both legal and factual planes.

16. In view of the above, I am of the view that the judgment of the learned appellate Court is quite in accordance with law and calls for no interference. The revision petition being devoid of force is hereby dismissed, leaving the parties to bear their own costs. S.A.K./262/P Revision dismissed.