2010 PLP 1028 (CLC)

SH. AHMAD FAROOQ, J.

The instant Regular First Appeal has been preferred by the appellants against the judgment dated 1-10-2003, whereby the learned Additional District Judge, Toba Tek Singh, dismissed a suit filed under Order XXXVII, rule 2, C.P.C. for recovery of Rs.600,000 along with mark-up.

2. The facts, in brief, necessary for the adjudication of the instant appeal are that Ch. Munir Ahmad/predecessor-in-interest of the present appellants, filed a suit under Order XXXVII, rule 2, C.P.C. against Muhammad Naeem/respondent for recovery, of Rs.600,000 along with mark-up, on the basis of a promissory note, receipt and agreement dated 10-7-2000. The plaintiff in the suit contended that the defendant undertook to repay the amount of Rs.300,000 on 9-8-2000, whereas the remaining amount of Rs.300,000 was promised to be paid on 9-9-2000. The plaintiff contended that the defendant did not honour his commitment and refused to pay the amount in question, whereupon the suit for recovery of the amount in question was filed under Order XXXVII, rule 2, C.P.C.

3. The defendant moved an application for leave to defend, on the ground that his signatures on the promissory note and the agreement dated 10-7-2000 were obtained under duress and he had already filed a suit for cancellation of the said promissory note and the agreement dated 10-7-2000 in a civil Court. The learned trial Court granted leave to defend the suit to the present respondent subject to furnishing security in the sum of Rs.650,000, vide order dated 2-12-2000. Thereafter the defendant/present respondent filed his written statement wherein he contended that his signatures on the promissory note as well as the receipt and agreement dated 10-7-2000 were obtained through blackmailing. The present respondent denied the receipt of any amount from the plaintiff/present appellant. The learned trial Court framed the following issues in view of the divergent contentions of the parties:-- (1) Whether signatures on the promissory note, receipt and agreement dated 10-7-2000 have been obtained under pressure, coercion, inducement, by blackmailing defendant and result of fraud and as such are not binding on the defendant? OPD. (2) Whether plaintiff has advanced a sum of Rs.6,00,000 (six lac) to defendant and in this regard got executed promissory note, receipt and agreement dated 10-7-2000, if so, then whether plaintiff is entitled for the decree as prayed for? OPP. (2-A) Whether present suit is not proceedable under section 10 of C.P.C. in view of preliminary objection No.2 of written statement? OPD (3) Relief.

4. Thereafter, the evidence of the parties was recorded by the learned trial Court. Finally, the learned trial Court vide judgment dated 1-10-2003, dismissed the suit filed by the predecessor-in-interest of the present appellants. Hence, the instant appeal.

5. The learned counsel for the appellants contended that the execution of the promissory note as well as the agreement was fully established from the statements of P.W.2, P.W.4, P.W.6 and P.W.7, in addition to the statement of the plaintiff which was recorded as P.W.S. He further contended that the amount of Rs.600,000 was paid by Ch. Munir Ahmad to Muhammad Naeem in presence of P.W.6 and P.W.7. The learned counsel for the appellants argued that the learned trial Court has not properly evaluated the evidence led by the present appellants. He further argued that the present respondent did not produce any witness in support of his plea. The learned counsel for the appellants maintained that minor contradictions in the statements of the witnesses of the present appellants regarding the time of payment have been given under weightage by the learned trial Court. He further argued that the findings of the learned trial Court recorded in the impugned judgment dated 1-10-2003 are factually incorrect. It is also contended that the learned trial Court erred in holding that the amount of Rs.600,000 was not actually paid by Ch. Munir Ahmad to Muhammad Naeem, vide promissory note Exh.P/2, receipt Exh.P/3 and agreement Exh.P/4. Lastly, he argued that the learned trial Court relied upon the solitary statement of the defendant which was not corroborated by any other witness.

6. Conversely, the learned counsel for the respondent submitted that the judgment under appeal was passed after proper appreciation of the evidence on record. He further submitted that the respondent was administered some intoxicants through an injection and he was not in a normal state of mind at the time of signing the promissory note as well as the agreement. The learned counsel for the respondent further argued that the present appellants could not prove the payment of Rs.600,000 to the present respondent through their evidence and as such, their suit under Order XXXVII, rule 2, C.P.C. was rightly dismissed by the learned Additional District Judge, Toba Tek Singh, vide his judgment dated 1-10-2003.

7. Arguments heard. Record perused.

8. At the outset, we would like to observe that the present respondent has not denied his signatures on the promissory note as well as the agreement dated 10-7-2000. However, the present respondent claimed that his signatures on the promissory note and the agreement dated 10-7-2000 were obtained under duress and he was not in a normal state of mind at the time of execution of the afore-mentioned documents. The afore-mentioned defence which the present respondent took during the proceedings of the suit against him is not corroborated by any witness. As a matter of fact, the defendant/present respondent did not examine any witness except appearing himself as D. W.1. The solitary statement of the present respondent which he got recorded as D.W.1 has been given preference over the statements of seven witnesses, including the plaintiff of the suit/Ch. Munir Ahmad by the learned trial Court without any convincing reason. The learned trial Court has held in the impugned judgment dated 1-10-2003 that the amount of Rs.600,000 was not paid by Ch. Munir Ahmad to Muhammad Naeem despite categorical statements of P.W.6 and P.W.7 to the effect that the amount of Rs.600,000 was paid by the predecessor of the present appellants to the respondent in their presence. Similarly stamp vendor, and Petition Writer were also produced as witnesses i.e. P.W.2 and P.W.3 respectively and from their statements the purchase of the stamped paper as well as the execution of the promissory note and agreement dated 10-7-2000 is fully established. Moreover, Ikram-ul-Haq and Nabeel Saeed are the marginal witnesses of the promissory note and the agreement dated 10-7-2000 and they appeared as P.W.6 and P.W.7 respectively before the learned trial Court in order to prove the execution of the afore-mentioned documents. It is worth-consideration that a document could only be proved through the statements of the scribe and the witnesses in whose presence it was written and executed. In the instant case the execution of the promissory note and the agreement dated 10-7-2000 was fully established. The findings of the learned trial Court to the contrary are not based on any cogent reasoning.

9. The learned trial Court did not record its finding on issue No.1, which was framed in respect of the signatures of the present respondent on the promissory note, receipt and agreement dated 10-7-2000.

10. Hence, it is established that the defendant in the suit could not prove that his signatures on the promissory note, receipt and agreement dated 10-7-2000 were taken under duress or coercion or through blackmailing. There is another important aspect of this case relating to the institution of a suit by the present respondent for cancellation of the agreement and the promissory note dated 10-7-2000 in a Civil Court at Toba Tek Singh. Surprisingly, neither the attested copy of the plaint afore-mentioned suit was produced by the present respondent nor he knew about the dismissal of the said suit on 5-3-2002. The learned trial Court totally ignored the said aspect of the case. The dismissal of the present respondents' suit for cancellation of promissory note and agreement dated 10-7-2000 makes his defence unbelievable.

11. In view of above, the impugned judgment dated 1-10-2003 is not sustainable and the same is accordingly set aside. Consequently, the present appeal is accepted and the suit filed by the predecessor-in-interest of the present appellants, namely, Ch. Munir Ahmad, against the present respondent, under Order XXXVII, rule 2, C.P.C. for recovery of Rs.600,000 is decreed in their favour. The parties are, however, left to bear their own costs. M.U.Y./M-191/L Appeal accepted.