2009 PLP 1234 (YLR)

SHAHJI RAHMAN KHAN, J.--This Regular First Appeal is directed against the judgment/decree dated 13-4-2000 passed by the learned Civil Judge/Illaqa Qazi, Dir Bala, whereby the suit of appellant-plaintiff namely, Motabar Khan son of Wazir Muhammad, resident of Shagga Srai, Tehsil & District Dir was dismissed.

2. Brief facts, necessary for disposal of the instant appeal, are that on 20-10-1998 Motabar Khan, appellant-plaintiff filed a suit in the Court of Senior Civil Judge/Aala Illaqa Qazi, Dir for the recovery of Rs.12,75000 from respondent-defendant namely, Mubarak Jan, who is also maternal uncle of the appellant-plaintiff, which he had given to the respondent-defendant as "Oarz-e-Hasana" in Saudi Arabia in the shape of 75000 "Saudi Rayal" with the promise/undertaking that respondent-defendant will pay/return the said amount in Pakistan in his village Shagga Srai, District Dir. The petitioners-defendant contested the suit by filing written statement and because of divergent pleadings, both the parties were put to trial on various issues. Evidence pro and contra recorded. The conclusion of the trial resulted in impugned judgment and decree against the appellant-plaintiff. Not contented therewith, the appellant-plaintiff has approached this Court through the instant appeal for the redressal of his grievances.

3. The learned counsel appearing for the appellant vehemently contended that the learned trial court has not appreciated the evidence produced by the appellant-plaintiff, which has been discussed while giving findings under issue No.2 of the judgment has committed an illegality in the impugned judgment and decree of the learned trial court by not taking into consideration the entire evidence of the appellant-plaintiff; that the learned trial court has also not given any ground/reason for discarding the evidence of the appellant and that the judgment and decree of the learned trial Court is against the law and fact, therefore, is liable to be reversed.

4. As against that, learned counsel for the respondent submitted that neither the appellant and respondent were residing in the same house/Dehra nor the respondent had received any amount from the appellant in Saudi Arabia as "Qarz-e-Hasana"; that the appellant has badly failed to produce any documentary evidence regarding the payment of such like huge amount to the respondent; that the witnesses i.e. Muhammad Qamar and Haji Badshah Gul were highly interested being close friends of the .appellant, their evidence cannot be relied upon and that the leaned trial court has rightly dismissed the suit of the appellant, therefore, by maintaining the orders/findings of the learned trial court, this appeal be out rightly rejected with costs.

5. I have considered the arguments of learned counsel for both the parties and have gone through the record with their valuable assistance. It is apparent from the record that according to the version of appellant, he had given the huge amount of Rs.12,75000 to the respondent and also claimed that he had given the said amount to the respondent in three instalments but has failed to produce/give the dates thereof, on which, he paid the amount to the respondent. He also admitted that he has not made any witness of the transaction from the Hujra, where both the parties were allegedly residing nor he has obtained any receipt of the payment of the said amount. Haji Qamar Din (P.W-2) and Badshah Gul (P.W-3) also claimed that the appellant paid the amount to the respondent on three difference occasions. But both these witnesses have contradicted each other on material points. In his examination-in-chief, Haji Qamar Din (P.W.2) has not stated that payment was made in presence of Badshah Gul (P.W-3) and in turn Badshah Gul (P.W-3) in the end of his cross-examination has stated that he is only witness to admission of respondent regarding payment to him by the appellant-plaintiff. Despite of claim of the appellant that in three installments payment was made to respondent but neither he has given the amount nor date and time of each installment.

6. In the impugned judgment and decree of the lower court, evidence of either party has been discussed in detail and the findings reached by the lower court are justified in the facts and circumstance obtaining in the case and it cannot be maintained that the conclusion arrived at by the court blow is perverse, arbitrary or illegal. I have gone through the evidence of both the parties and find no misreading or non-reading of evidence or any patent illegally or legal infirmity in the impugned judgment and decree of the court below. The court has acted in accordance with law and proper appreciation of evidence brought on record. In absence of any misreading/non-reading of evidence or any illegality or any material irregularity or any jurisdictional error or defect, the findings of the court below could not be interfered with by this court.

7. For what has been discussed above, the appeal having no merits and substance is hereby dismissed with no order as to costs. H.B.T./59/P Appeal dismissed.