2014 PLP 1001 (CLD)

ABDUL LATIF KHAN, J.

Aggrieved of the judgment and decree dated 27-11-2010 passed by the learned District Judge-II, D.I. Khan vide which his suit for recovery of Rs.13,27,250 on the basis of pro note dated 24-10-2005 along with interest at the rate of 14% was dismissed, the appellant has filed the instant appeal.

2. Learned counsel for the appellant contended that trial Court has not evaluated the evidence available on file. No issue-wise discussion made as laid down in Order XX, Rule 5, C.P.C. It was argued that findings on issues Nos.1, 2, 7, 9 and 10 are inconsistent with law and facts of the case. It was contended that all the witnesses of promissory note were examined but were not properly appreciated and wrong conclusion was arrived at. It was argued that trial Court has ignored the fact that Muhammad Aslam witness happens to be the real brother of defendant residing in one house and has made concessions in his statement in favour of his brother, the advantage of same could not be extended to him. It was contended the burden lies upon the defendant who deny the execution of document to prove otherwise but this vital aspect too escaped notice of trial Court. The Iqrarnama dated 8-6-2006 was also ignored by the Court below which was further confirmed through another documentary evidence i.e. register wasiqa No.447 dated 9-3-2007. The learned trial Court has taken the matter through an incorrect angle by observing that there was collusion in between plaintiff and Choudhry Muhammad Asghar and ignored the fact that cheques were issued by Choudhry Muhammad Asghar in favour of plaintiff at the instance of defendant at the eve of agreement between them dated 8-6-2006 which were dishonoured from the bank, so the plaintiff was defrauded both by the defendant as well as his nominee Choudhry Muhammad Asghar and trial Court failed to appreciate the evidence through proper evaluation.

3. Conversely, learned counsel for the respondents contended that the trial Court rightly dismissed the suit of the plaintiff, as he failed to prove the case. He referred to the statement of P.W.4 who had not put his signatures at the time of execution of document rather he signed it in his office brought to him by the petition writer. He also deposed that no pro note was shown to him nor money exchanged hands in his presence. He also referred to the statement of P.W.5 who has not witnessed the payment of money. He supported the impugned judgment with great vehemence and prayed for dismissal of appeal.

4. I have given my anxious thought to the arguments of learned counsel for the parties and perused the record with their valuable assistance.

5. The plaintiff/appellant instituted a suit for recovery of Rs.13,27,250 on the basis of pro-note dated 24-10-2005 against the respondent/defendant, along with 14% interest at bank rate, till recovery. The defendant has denied the receipt of cash amount, however, disclosed that there was joint property business between the parties and the pro-note was admitted to have scribed and given to plaintiff under coercion and due to relation, specially at instance of his brother Mohammad Aslam, in order to save good relations. In application for leave to defend the suit, the defendant has taken the plea that when he suffered loss in the business and came under burden of debts, he entered into transaction of sale of plaza with one Choudhry Muhammad Asghar on 8-6-2006, for consideration of Rs.70,00,000 in which along with other debts, the loan of plaintiff for Rs.14,20,000 was also included, were shifted into liability of Choudhry Muhammad Asghar vide referred agreement duly signed by him and Choudhry Muhammad Asghar had put his signature as marginal witness to it and as such he was released from liability to pay the amount owed to plaintiff and Choudhry Muhammad Asghar gave cheques to the plaintiff and thus pro note scribed stands satisfied and lost its value. This plea is in contrast to that taken in written statement. It is in the statement of respondent as D.W.1 that due to marriage of someone in the family, he was compelled to give pro-note to the plaintiff in order to save relation with plaintiff, which was a further inconsistent plea raised.

6. It is pertinent to mention that D.W.1 in his cross-examination admitted that transaction took place between him and Choudhry Mohammad Asghar vide agreement dated 8-6-2006, Exh.P.W.5/D-1, stand cancelled vide 'Abdal Nama', Exh.P.W.1/2 dated 9-3-2007. He admitted that disputed amount was not paid by Choudhry Muhammad Asghar to the plaintiff, however, advanced fourth plea that it was "amanat" with plaintiff. Had Choudhry Muhammad Asghar paid the amount to plaintiff, would have been his "amanat" with plaintiff. He acknowledged his signatures on pro-note and receipt. He added that he put his signature on the pro-note which was blank at that time. The above discussion leads to conclusion that pro-note admitted but narrated four different versions about its execution, but to prove these versions, no evidence produced. The factual of amount in dispute outstanding against the defendant also stand established through transaction with Choudhry Muhammad Asghar and liability in dispute was shifted to him to pay amount to the plaintiff who in turn paid cheques but dishonoured from bank and later on transaction of sale of property admittedly cancelled between defendant and Choudhry Muhammad Asghar, so, the liability in dispute revert back to defendant, which is still unsatisfied as no payment made to plaintiff. The plaintiff has to prove the execution of pro-note who did so by producing scribe and marginal witness despite the fact that its execution was admitted by the defendant. In cases of negotiable instruments, burden lies upon the defendant to contrary prove as presumption is attached to negotiable instruments envisaged in section 118 of the Negotiable Instruments Act. The minor discrepancies in the statements of witnesses with special reference to relation of witnesses with the defendant and certain concessions made cannot be made basis to non-suit the plaintiff, as observed by the trial Court. In fact the witnesses have not denied their signatures rather admitted albeit with slight variations which are not material. The moot point is that the defendant admitted pro-note rather than to prove contrary and in such eventuality no variation in deposition of its marginal witnesses would be fatal with reference to venue and signature put over it or non-payment of consideration in their presence. The defendant has also admitted its execution in transaction with Choudhry Muhammad Asghar and in his Court statement he had made clear version to this effect, leaving no room to doubt the execution of pro-note. The trial Court has been unable to appreciate the evidence with special reference to circumstances of case and burden of defendant in like cases of negotiable instrument, which has a different status than ordinary civil case with regard to the burden of proof and as such wrongly non-suited the appellant.

7. For the reasons mentioned above, this appeal is accepted, the impugned judgment and decree dated 27-11-2010 is set aside and suit of the appellant/plaintiff for recovery of Rs.13,27,250 is hereby decreed in his favour, with no order as to costs. ARK/253/P Appeal accepted.