1988 PLP 1327 (CLC)

Appellant in person. Muhammad Afzal for Respondent. Dates of hearing: 19th September and 4th October, 1987. This first appeal is directed against the judgment and decree passed by the District Judge, Karachi, dated 14‑2‑1985.

2. The relevant facts are that the appellant had married the daughter of the respondent in 1979 and it is alleged that the appellant had paid Rs.20,000 to the respondents on 19‑11‑1980 and the respondent had executed a receipt of the promissory note for that amount. There were differences between the parties later on in 1981 and in 1982 the appellant filed a suit for recovery of Rs.20,

000. The respondent denied the execution of that document and took the specific plea that it was a forged document, because the respondent was not in Pakistan on 19‑11‑1980, as he had left the country for Muscat on 12‑10‑1980 and returned from there on 31‑8‑1981. It was also asserted that the appellant had filed a false complaint against the respondent in respect of Rs.20,

000. It was also stated that Atiqa wife of appellant had filed a suit for maintenance against the plaintiff /appellant and the plaintiff had filed a suit for restitution of conjugal rights, and therefore, the present appellant had filed the suit for recovery of Rs.20,000 in order to pressurize Mst. Atiqa to enter into compromise.

3. The issues were framed and evidence of the parties was recorded. Appellant Muhammad Idris Khan examined himself in support of his case and stated that he had paid Rs.20,000 as friendly 1:~;to the respondent, who had executed the said pronote Exh.6. In cross‑examination he admitted that his wife had filed a suit for maintenance against him and that he had lodged a report with the Orangi Police against the respondent. No other witness was examined by the appellant /plaintiff. The defendant/ respondent Chotey Khan examined Ahmed Khan, who stated that Exh.6 did not contain signature of his father Chotey Khan, who was a witness of the pronote and that the signature of Chotey Khan appeared to be forged one. But in cross‑examination this witness admitted that he was not concerned with the work of writing and he was weak in reading of Urdu' any cannot compare signatures of others. His statement is hardly of any worth. The respondent in his own statement stated that on 19‑11‑1980 he was at Muscat and came back to Pakistan on 31‑8‑1981, whereafter he had gone to Muscat on 12‑10‑1981. He denied his signature on pronote Ex.6 and stated that it was a forged one. He also stated that Chotey Khan, witness of the pronote was dead. He produced letters written to him by the plaintiff as Exh.9 to Exh.

12. He denied that he had taken any loan from the plaintiff. In cross examination he stated that 'Rukhsati' of his daughter took place in his absence but he was shown Exh. 6, which is a letter written by him to the plaintiff and he admitted that it was written by him and he also admitted that in that letter he had written to the plaintiff that at the time of 'Wida' he had advised Mst Atiqa that she had to make her own life. It, therefore, appears that the statement of the respondent that he was not present at the time of 'Rukhsati' of his daughter was false. He was also confronted with his original passport in Court, which bore a stamp of Pakistan dated 17‑10‑1980. He could not explain the same. His passport also shows that he arrived in Oman on 12‑10‑1980 and departed from Muscat on 17‑10‑1980. He stated that he did not come to Pakistan on 17‑10‑1980 but did not state as to where he went from Oman on 17‑10‑1980. Again he was shown his entry in Oman on 28‑10‑1981 in his passport. The entries in the passport clearly show that the respondent was in Pakistan on 17‑10‑1980 and went to Oman only on 28‑10‑1981, and therefore, it is obvious that he was in Pakistan on 19‑11‑1980 when the alleged promissory note was executed. Therefore, the statement of the respondent that he was not in Pakistan on 19‑11‑1980 is an absolute lie. Once it is found that his statement contains two lies his statement should not have been believed and he should have been dubbed as lier. The District judge has compared the signature on the written statement with the signature on the promissory note and he came to the conclusion that the signatures were different. I have also obtained the signatures of Chotey Khan in the presence of his counsel on 9‑9‑1987 and I find that this man Chotey Khan signs his name in English in different manner. His five signatures obtained by me do not compare at all with his signature on the written statement filed by him or the signature on the vakalatnama of the learned counsel in this Court, and therefore, the comparison of signatures of such a person was hardly of any consequence. The appellant had clearly stated that the promissory note had been signed by the respondent Chotey Khan and in view of the fact that Chotey Khan has been found to lie in respect of his absence from Pakistan on 19‑11‑1980, therefore, his statement that he did not sign over the promissory note was hardly worth any credit. In fact, in circumstances of this case, he should have been completely disbelieved. After disbelieving the respondent there is only the statement of the appellant, which remains on record and he has not been found to lie in respect of any thing. It is correct that there was litigation between the parties but the same has no justification for disbelieving the statement of the appellant in respect of the promissory note. The District Judge has taken into consideration certain letters, which the appellant had written to the respondent in 1981, wherein there was no mention of the loan of Rs.20,

000. However, in 1982, the appellant had addressed a demand notice to the respondent by registered A/D post but the same was not replied by the respondent, and therefore, in these circumstances, the failure to mention the loan in earlier letters is hardly of any significance. The District Judge has considered the failure of the appellant to examine any witness of receipt. One witness of the receipt was, however, dead, as admitted by the respondent and therefore, he could not be examined. The other witness is Mst. Atiqa Bano and naturally she could not be examined by the appellant, as there was litigation between the appellant and Mst. Atiqa Bano and hence the failure of the appellant to examine the witnesses of the receipt was hardly of any consequence. The appellant had stated that he was enrolled in 1979 as an Advocate and his monthly income from legal profession was between Rs.2,000 to Rs.3,

000. He also stated that Rs.10,000 were received by him from a tenant of his father. In these circumstances, a reasonable explanation has been offered by the appellant for the money that he had advanced.

4. I am of the view that the appellant should have been believed and there was no reasonable justification to believe the respondent, because the respondent had told a lie on the basic point that he was not present on 19‑11‑1980. The signatures appearing on the promissory note and the receipt Exh.6 were proved by the appellant to be of the respondent and he should have been believed and I believe, particularly because of the fact that the respondent Chotey Khan has A been signing in different manner at various places.

5. For the above reasons, this appeal is allowed. The judgment and decree of the Lower Court are set aside and the suit of the appellant is decreed in the sum of Rs.20,000 against the respondent with costs throughout. H. B. T./M‑387/K Appeal allowed.