P L D 1953 Baluchistan 4 (PLP)

MUHAMMAD ASLAM, J. C.‑This is a second appeal under section 32 of the British Baluchistan Courts Regulation, 1939 from the judgment and decree, dated 18th August 1951 of the District Judge in Baluchistan, reversing the judgment and decree dated 8th May 1951 passed by the Senior Sub‑Judge in Baluchistan whereby the plaintiff‑respondent's suit for Rs. 3,300 was dismissed with costs. The facts of the case are quite simple. The plaintiff alleged that the defendant had borrowed Rs. 2,800 from him on 13th January 1947 and signed the relevant entry in his bahi but failed to repay the amount. The plaintiff therefore filed a suit for the recovery of Rs. 2,800 together with Rs. 500 as interest at the Sahukari rate of 6 per cent. p. a. The defen dant raised a number of plea in Court of first instance, including the pleas of jurisdiction and limitation, but his main contention was that he had settled the plaintiff's claim through the mediation of the late (S. B.) Haji Mewa Khan. by paying up a sutra of Rs. 2,000 to the plaintiff, in full and at final settlement of the latter's claim. The learned Senior Sub‑Judge found all the issues in favour of the plaintiff except the one regarding the alleged discharge of debt through Haji Mewa Khan. Accepting the oral testimony of three of the defendant's witnesses, two of whom namely Muhammad Hasham (D. W. 1) and Abdur Rahman (D. W. 2) had deposed that they were the scribe and attesting witnesses respectively, of the receipt executed by the plaintiff in favour of the defendant at the time of payment of Rs. 2,000 to the plaintiff through Haji Mewa Khan, the trial Court came to the conclusion that it had been proved that Haji Mewa Khan did bring about a settlement between the parties whereby the plaintiff' received Rs. 2,000 in full and final settlement of his claim. The trial Court therefore dismissed the suit with costs. The plaintiff went in appeal 'against this order, and the Appellate Court, after examining the statements of the defendant s witnesses and discussing the value of oral testimony as against documentary evidence and the circumstances of the case, declined to rely on the veracity of defendant's witnesses and accepting the appeal, decreed the, plaintiff's claim. The case was argued at length before me and various aspects of the case were examined. There are, however, two main points only, which really matter, and I propose to deal with them. In the first instance it was contended by the learned counsel for the appellant that since the suit was based on an unstamped writing (Exh. P/1), which amounted to an acknowledgment, the suit was not maintainable as such a document could not form the basis of any claim in Court, Without going into the question as to the effect of section 36 of the Pakistan Stamp Act, namely, that if a document is accepted by the Court in evidence on payment of penalty under section 35 of the same Act, its admission shall not be called in question at any stage of the same suit on the ground that it has not been duly stamped. I find that the wordings of the document (Exh. P/1) itself, which if translated into English, would mean. Rs. 2,800 received in cash on 13th January 1947", are plain enough to make it a "Receipt" within the meaning of section 2 (23) of the Stamp Act, as such, even though unstamped, it was admissible in evidence on payment of the penalty provided under section

35. The next point to examine is whether in the circumstances of the case reliance could be placed on the oral evidence tendered by the defendant or not. It is not possible to lay down any hard and fast rule as to the exclusion or otherwise of oral evidence generally, and each case must be judged on its own merits. In this case, [lie plaintiff‑respondent s claim is based on a written receipt duly executed and signed and also admitted as correct by the defendant‑appellant himself. The appellant has produced no documentary evidence what soever in support of his contention that he had already all accounts with the respondent. He not only did not produce the receipt alleged to have been taken by Haji Mewa Khan for him (defendant‑appellant) from the respondent but he produced only one of the two alleged marginal witnesses of the aforesaid receipt, and have no reasons for the non‑produc tion of the other alleged marginal‑witness. If it was intended to rebut a documentary evidence by means of oral evidence, enough to leave no ground whatsoever for any reasonable doubt about it. As it stands, the evidence produced by the appellant leaves considerable scope for reasonable doubt regarding its veracity. It has already been mentioned above that only one of the two alleged marginal witnesses of the alleged receipt has been produced without giving any reasons for the non‑production of the other of the s~3id witnesses. Fur ther, it has been alleged by the appellant that the receipt obtained from the respondent in full settlement of the accounts had been left lying with Haji Mewa Khan. No valid reason had been adduced as to why the appellant who alleged to have actually paid Rs. 2,000 to the respondent through Haji Mewa Khan, did not take tile said receipt into his own possession. Further, again, as appropriately observed by the learned District Judge, the plaintiff‑respondent, who if a Shaukaar of considerable standing, has no entry made in his ledger regard ing any settlement of the kind mentioned by the appellant having taken place between him and the respondent. This is contrary to the normal practice of Shaukaars, and in the circumstances of the case can only be attributed to the fact that no such settlement in fact had taken place. I therefore, agree with the findings of the learned District Judge, uphold his order in appeal, and hereby dismiss this appeal with costs. A. H. Appeal dismissed.