2007 PLP 826 (CLD)

MUHAMMAD JEHANGIR ARSHAD, J.

This R.F.A. is directed against the judgment and decree dated 5-11-2004 passed by learned Additional District Judge, Dera Ghazi Khan, whereby the suit filed by the appellant under Order XXXVII, C.P.C. for recovery of Rs.12,00,000 on the basis of pro note and receipt, was dismissed.

2. The facts in brief are that on 1-2-2003 the appellant filed a suit before the learned trial Court under Order XXXVII, C.P.C. stating therein that as relations between the appellant and respondent were close, cordial and also fiduciary, and the brother of respondent was also employed with the appellant, thus the respondent approached him with the prayer that as he had suffered huge financial loss in his pharmaceutical business and his company had run into losses, for the restoration which some capital was required, therefore, he was in urgent need of money for a period of six months and as the appellant was a man of sound financial means and he had also sold his house, therefore, on the pressing demand of the respondent and keeping in view the stressing financial condition of the respondent, the appellant gave him Rs.12,00,000 as loan on 25-6-2002 in the presence of the witnesses and in token thereof the respondent executed on the same day a pro note and receipt (Exh.P.1 and Exh.P.2) and also orally undertook to return the amount without failure as early as possible, but as the respondent failed to honour his commitment and did not pay back the said amount, the appellant was therefore, obliged to file the suit.

3. On receipt of notice of the suit, the respondent entered appearance before the learned trial Court and moved an application seeking leave to appear and defend the suit, which application was allowed by the learned trial Court on 6-4-2003. The respondent/defendant thereafter filed written statement wherein besides denying the averments of the plaint the respondent also denied the execution of the pro note as well as receipt by terming the same as fictitious and forged one containing unauthorized cuttings/alterations. Keeping in view the pleadings of the parties, the learned trial Court framed the following issues:-- Issues: (1) Whether the defendant executed a promissory note in favour of the plaintiff on 25-6-2002 along with a receipt in acknowledgment of the amount in dispute? OPP. (2) Whether the pro note in dispute is forged and fabricated? OPD. (3) Whether the pro note in dispute is without consideration? OPD (4) Whether the defendant is entitled to special cost, if so, what should be quantum of costs? OPD (5) Whether the plaintiff is entitled to the recovery of sum of Rs.12,00,000 from the defendant under the pro note and receipt in dispute? OPP (6) Relief. The plaintiff/appellant in his affirmative evidence himself appeared as P.W. produced Kamal Rustamani (P.W.2) and Muhammad Fayyaz (P.W.3) two witnesses of the said pro note (Exh.P.1) and receipt (Exh.P.2) and closed his evidence. The respondent/defendant appeared himself as D.W.1 and closed his evidence. After completion of the trial, the learned trial Court vide judgment and decree dated 5-11-2004 dismissed the suit. Hence, this appeal.

4. It has been argued by learned counsel for the appellant that as the respondent has not denied the execution of the pro note as well as receipt (Exhs.P1 and P.2) and the appellant has successfully proved the execution of both the documents by producing two witnesses namely Kamal and Fayyaz (P.W.2 and P.W.3), therefore, there was no justification for the learned trial Court to have dismissed the suit of the appellant by deciding Issues Nos.2 and 3 against him merely on surmises and conjectures.

5. On the other hand, learned counsel for the respondent has vehemently opposed this appeal by arguing that findings of the learned trial Court on Issues Nos.2 and 3 being based on evidence as well as law, therefore, the suit of the appellant was rightly dismissed.

6. We have considered the arguments of learned counsel for the parties and have also examined the original pro note as well as receipt available on the file of the learned trial Court.

7. We have noticed that the original pro note Exh.P.1 contains cuttings as well as addition so far as it relates to the amount of loan allegedly paid under the same. Firstly the amount in figures appears to have been changed from Rs.2 lacs to Rs.12-lacs, secondly the amount of two lacs originally written in words has been changed by making "ﺩﻭ" in t o "ﺑﺎﺭﻩ" and this interpolation becomes more obvious because when it is read it makes " ﺑﺎﺭﻩ " into " ﺑﺎﺩﻩ", meaning thereby that the word "ﺑﺎ" has been inserted before " ﺩﻭ " and "ﻮ" of the word " ﺩﻭ" has been tried to be made "ﻩ". Again it appears that half of Rs.12,00,000 has been converted into Rs.6,00,000 in figures and also "ﮀﻬ" in words.

8. Although the learned counsel for the appellant has tried to justify this tampering by referring to a note on the margin of the pro note stating that "sattar # 3 main Nisf jis kay 6 lakh rapay derush hain" yet this alone cannot rectify the alteration especially when this note .neither contains the signatures or thumb impressions of the respondent nor gives any explanation for changing the figure (2) into (12), both in words and figures. Further the above alteration without the consent of the respondent is sufficient to discharge him from his liability in respect of the consideration under the pro note in question in the absence of any evidence that said alteration was made in order to carry out common intention of the parties as required by section 87 of the Negotiable Instruments Act.

9. We have also examined the judgment of the learned trial Court on other points including appraisal of evidence carried out by the learned trial Court and find that the learned trial Court has not committed any illegality or irregularity by arriving at the conclusion that respondent has successfully proved Issues Nos.2 and 3 in his favour. We also find no force in the contention of learned counsel for the appellant that respondent in his written statement had admitted execution of pro note and receipt to the extent of Rs.2,00,000, therefore, to this extent his suit was to be decreed, whereas, a perusal of the written statement filed by the respondent makes it abundantly clear that at the very outset the respondent had taken a plea in preliminary objections that the disputed pro note as well as. receipt were fictitious, collusive and based on fraud and also contained interpolations in order to burden him with the disputed amount, We therefore, maintain the findings of learned trial Court on Issues Nos.2 and 3 and dismiss this appeal, with no order as to costs. M.H./M-176/L Appeal dismissed.