2011 CLC 508 (PLP)

ATTAULLAH KHAN, J.

Sajid Muneer petitioner has filed this revision petition under section 115, C.P.C. against the concurrent judgments and decrees dated 12-3-2005 and 7-9-2005 passed by the learned two Courts below respectively, whereby his suit for specific performance of contract and in alternative for recovery of Rs. 2,27,050 was dismissed.

2. Briefly stated facts of the case are that Doctor Muhammad Abdullah Khan plaintiff had advanced an amount of Rs. 2,27,050 on two occasions, i.e. on 12-8-2004 and 27-8-2004, to Sajid Muneer defendant, a Jeweler by profession, for preparation of golden ornaments for his two daughters and its receipt was duly acknowledged by the defendants through receipts handed over to the plaintiff. However, the defendant failed to honour his commitment, because neither he prepared and handed over the requisite golden ornaments nor returned the received amount in this behalf and thus the plaintiff was constrained to sue him through the suit in hand.

3. The defendant was summoned who appeared and contested the suit by filing written statement which gave rise to the framing of the following issues:-- (1) Whether the plaintiff has got a cause of action? OPP (2) Whether the suit is maintainable in its present form? OPP (3) Whether the suit has been deficiently stamped? OPD (4) Whether plaintiff is estopped to sue by his own conduct? OPD (5) Whether defendant is entitled to receive compensatory cost under section 35-A of C.P.C.? OPD (6) Whether plaintiff paid Rs. 2,27,050 to the defendant on two different occasions for preparation of golden ornaments for his daughters? OPP (7) Whether the defendant neither prepared the golden ornaments for the plaintiff nor has paid back the amount received from the plaintiff? OPP (8) Whether the plaintiff is entitled to the decree as prayed for? OPP (9) Relief?

4. The learned trial Judge on evaluating the evidence brought on record and hearing pro and contra evidence decreed the suit of the plaintiff whereagainst appeal also met the same fate as mentioned above and hence this revision petition.

5. Learned counsel for the petitioner argued that both the Courts below have failed to take into consideration the evidence on record. He submitted that the entire case of the plaintiff is based on two receipts of the defendant who has specifically denied his signatures thereon in the written statement as well as in his evidence.

6. On the other hand, learned counsel for the respondent contended that from the evidence, the plaintiff/respondent has succeeded to prove his case. He has produced two witnesses in support of execution of the said two receipts by the defendant/petitioner and therefore, both the Courts below have rightly decreed suit of the plaintiff/respondent.

7. I have carefully gone through the record of the case and anxiously considered the arguments advanced at the bar by the learned counsel for the parties.

8. The first thing to be noted is the written statement of the defendant/petitioner. In para-3 of preliminary objections (Uzrat-e-Tamheedi), the defendant has termed both the receipts as bogus and fictitious. In para-2 of the written statement, he has totally denied the execution of any receipt and also alleged that his signature on the said receipts were bogus.

9. I have also perused the issues framed by the trial Court. In my opinion, the execution of receipts and signatures over it are disputed which have been specifically denied by the party concerned. This objection has been raised twice in the written statement.

10. It was the duty of the trial Court to have framed an issue in regarding this objection which has failed to do so.

11. As discussed above, the written statement contain all the allegations regarding the correctness of the two receipts which are the main basis of civil suit filed by the plaintiff/respondent.

12. In my opinion, the non-framing of issue in this behalf has rendered the findings of both the courts below as fictitious and illegal.

13. Moreover, the record reveals that the signatures of the defendant/petitioner have not been sent for comparison and verification to the Handwriting Expert. The signatures of the defendant/petitioner on the receipt were the bone of contention between the parties. It must have been compared as stated above. The Courts below have failed to observe this formality which was necessary for disposal of the dispute between the parties.

14. While deciding the case, the trial Court should also keep in mind the provisions of Qanoon-e-Shahadat which provides in Article 79 that all the instruments pertaining to financial obligations are required to be attested by at least two witnesses. In this case, the receipt relied upon by the plaintiff creates financial liability and the plaintiff has to call the attesting witnesses because the receipts have been denied by the defendant and in case of denial, the burden shifts to the party claiming thereunder.

15. Keeping in view the stand taken by the defendant in the written statement, the following additional issue is framed:-- "Whether the receipts are bogus and fictitious and the signatures thereon are not of the defendant?

16. In view of my above discussion, this revision petition is accepted, the impugned judgments and decrees of both the Courts below are set aside and the case is remanded to the trial Court for decision afresh after recording evidence on the additional issue and hearing pro and contra arguments. Since the case is too old pertaining to the year 2004, the trial Court is directed to dispose it of as early as possible. S.A.K./13/P Case remanded.