2019 PLP 935 (CLC)

SYED MUHAMMAD ATTIQUE SHAH, J.

This regular first appeal by Umar Khan, appellant, (now dead and represented by his legal heirs) is directed against the judgment and decree dated 13.11.2012 of the learned Additional District Judge-I, Mansehra, whereby suit of the respondent for recovery of Rs.98,000/- along with profit on the basis of pro note dated 30.06.2009 under Order XXXVII, C.P.C., was decreed for actual amount of Rs.98,000/- against the appellant.

2. The brief facts, as mentioned in the plaint are that the respondent/plaintiff had instituted a suit under Order XXXVII of Civil Procedure Code, 1908 for recovery of Rs.98,000/- along with profit against the appellant/defendant on the basis of pro note dated 30.06.2009. The appellant was summoned, who despite service, failed to appear before the learned trial Court and consequently an ex parte decree was granted in favour of the respondent/plaintiff vide order dated 19.03.2011, which was subsequently set aside by the learned trial Court and the appellant/defendant was granted leave to defend the suit. The appellant/defendant submitted written statement and the following issues were framed from the divergent pleadings of the parties. "ISSUES

1. Whether the plaintiff has got a cause of action?

2. Whether suit of the plaintiff is bad in its present form?

3. Whether the plaintiff is stopped to sue due to his own conduct?

4. Whether the plaintiff has paid an amount of Rs.98,000/- to the defendant as loan (Qarz)?

5. Whether defendant has executed a pro note dated 30.06.2009 with respect to the amount of Rs.98,000/-?

6. Whether the said pro note is fake, fictitious and so illegal one?

7. Whether any transaction was struck between the plaintiff and defendant?

8. Whether court fee is affixed as required?

9. Whether suit of the plaintiff is beyond limitation?

10. Whether instant suit is instituted to harass the defendant and whether defendant is entitled to costs?

11. Whether plaintiff is entitled to relief/claim as prayed for?" Thereafter, the learned trial Court recorded evidence of both the parties and after hearing arguments of learned counsel for the parties, the suit of the respondent/plaintiff was decreed vide judgment and decree dated 13.11.2012, hence, the instant appeal.

3. Learned counsel for the appellant argued that the impugned judgment and decree passed by the learned trial Court is against the facts brought on record and the suit of the respondent/plaintiff was decreed without considering material evidence; that despite availability of second marginal witness of the pro note, he was not produced before the learned trial Court by the respondent/plaintiff and the scribe thereof was also not produced, and the suit of the respondent was wrongly and illegally decreed; and finally he prayed for setting aside of the impugned judgment and decree.

4. Conversely, the learned counsel for the respondent fully supported the impugned judgment and decree, and argued that no illegality has been committed by the learned trial Court as the respondent has proved the execution of the pro note through cogent and reliable evidence and no illegality or irregularity has committed by the learned trial Court, while decreeing the suit of the respondent. Learned counsel for respondent prayed for dismissal of the present appeal.

5. Arguments heard. Record perused.

6. Perusal of record would reveal that the claim of the respondent/plaintiff for recovery of Rs.98,000/- from appellant/defendant, which was obtained by him as loan, is based on pro note dated 30.06.2009 (Ex.PW 1/1). In order to prove his case, the plaintiff produced Manzoor Hussain Advocate/Notary Public as PW-1, who during cross-examination admitted that the pro note was not scribed in his presence and that he could not say whether thumb impression of the appellant/defendant on the pro note (Ex.PW 1/1) and his register are same or not. Abid Nawaz (PW-2) appeared before the Court and recorded his statement as marginal witness to pro note (Ex. PW 1/1) and stated that the disputed amount was paid in his presence by the respondent/plaintiff to the appellant/defendant, however, in the same breath he admitted in cross-examination that the amount in question was not paid in his presence. He further admitted that his signature on pro note and CNIC are different. He was unaware about the second marginal witness of the pro note (Ex.PW 1/1). This dubious conduct on the part of the marginal witness in the suit creates doubts regarding genuineness of the transaction between the parties. The respondent/ plaintiff appeared as PW-3. During cross-examination he showed his objection when he was asked about sending of pro note (Ex.PW 1/1) for comparison of thumb impression of the appellant/defendant. Moreover, the respondent has failed to produce second marginal witness, Syed Hussain Shah to prove the execution of the pro note. It is also not established through cogent, reliable and confidence inspiring evidence that who had scribed the alleged pro note. The respondent/plaintiff (PW-3) has not disclosed the name of the scriber. He further stated that at the time of scribing the pro note copies of CNIC of the parties and the witnesses were attached thereto and when he realized about the next question to be asked in this regard, he himself stated that the copies were misplaced by passage of time to avoid further questions during cross-examination. This Court in view of the above discussion is of the firmed opinion that the learned trial Court while rendering its finding has failed to appreciate the evidence of the parties in its true perspective and the respondent/plaintiff was required to have proved the execution of the pro note through cogent, reliable and confidence inspiring evidence and non-production of one of the marginal witnesses was fatal to his case. The respondent/plaintiff admitted that second witness to the pro note was not coming with him to the Court for evidence. Thus, the obvious inference which could be drawn in the circumstances is that he was not supporting the case of the respondent regarding execution of the pro note.

7. In view of the foregoing discussion, this appeal is accepted, the impugned judgment and decree of the learned trial Court are set aside and the suit of the respondent/plaintiff is dismissed. ZC/51/P Appeal allowed.