P L D 1959 (W (PLP)

Mr. Riaz Ahmed, the learned counsel for the appellant, has rightly not pressed before us that the Subordinate Judge at Hyderabad had no jurisdiction to try the suit. Admittedly in none of the documents the parties agreed about the place of the payment of the amount in dispute. The learned Judge in these circumstances was perfectly justified in relying on section 49 of the Contract Act and correct in holding that it is the duty of the debtor to find out the creditor, and where the parties have not stipulated the place of the discharge of the debt, it will be presumed that the amount will be paid at the place of the creditor. The only points, therefore, for determination in this case are whether the document (Ex. 37) was executed in October 1947, and whether the documents (Exs. 42 and 43) were written under coercion and undue pressure. In order to appreciate the contentions of the parties it will be proper to mention here the circumstance under which the alleged document came into existence. The appellant and the respondent worked together on the Hijaz Relief Committee. The appellant was the Secretary and the respondent was Vice‑President of the said organization and were on friendly terms with each other. Even before that the respondent appears to be on intimate connection with the appellant and his family. On the 20th of April 1943 the respondent agreed to purchase two plots of land situated at Karachi for a sum of Rs. 32,000 from the appellant, his brother Saleh Muhammad and his mother Mst. Mariam. As already stated, in the year 1944 dispute arose between the appellant, his brother and mother over their joint properties situated at Karachi. This matter was referred to the arbitration of Mr. Fatehchand Assudomal, an eminent advocate of Karachi. The dispute between the appellant and his brother and mother were adjusted and the appellant was required to pay Rs. 5,000 towards their claim. The appellant for this purpose approached the respondent for a loan, who gave a cheque for Rs. 5,000 in favour of Mr. Fatehchand advocate. The appellant, after delivery of this cheque, executed a receipt dated 28‑4‑1946 (Ex. 36), under which he admitted his liability to pay the said amount without interest to the respondent. According to the respondent, the appellant failed to pay this amount. He therefore sent his relative P. W. 2 Abdul Ghaffar (Ex. 38) on the occasion of the first Id of Haj after partition with a letter to demand the money from the appellant. The appellant did not pay the amount but instead gave a letter for the respondent (Ex. 37) in which he promised to pay the said amount. The letter (Ex. 37) bears no date. The first Id of Haj after partition fell in October 1947 and the appellant has alleged that the document (Ex. 37) was ex ecuted in October 1947. Another document executed by the appel lant is an agreement dated 6‑7‑1950 . . . . (sic) promised to pay the amount due from him to the respondent after he is able to arrange for a lean of Rs. 20,000 with some bank. The respondent has also relied on a letter (Ex. 43) dated 6‑7‑1950 whereby the appellant promised to execute a pronote for Rs. 8,500 which he had taken on loan from the respondent. The respondent has further relied on another letter (Ex. 45) dated 26‑7‑1950 under which the appellant promised to mortgage his property with a bank for Rs. 22,

000. He promised to utilize this amount towards the payment of Rs. 8500, the claim in dispute, for the payment of Rs. 2,000 to the first mortgagee and for keeping the balance amount of Rs. 11,500 with the respondent as guarantee for the satisfaction of the decree that may be passed in the suit filed by one Viroomal against him and respondent in the Chief Court of Sind in respect of certain joint liabilities arising out of the debts incurred by the appellant. It will be observed that if the letter (Ex. 37) was executed in October 1947, the claim in suit was not only acknowledged on .6‑7‑1950 but also on 26‑7‑1950 and it will be within time at the time of the suit. If, however, the document (Ex. 37) is not found to be executed in October 1947, the claim in dispute will not be within time on the basis of the alleged acknowledgment. In that case, the alternative case of the respondent namely that the appellant under an agreement dated 6‑7‑1950 promised to pay a barred debt will arise for determination. This plea is based on section 25(3) of the Contract Act and has found favour with the Subordinate Court. I propose therefore to deal in the first instance with the question whether the document (Ex. 37) was executed in October 1947. The respondent, besides himself, has examined one other witness P. W. 2 Abdul Ghaffar (Ex. 38) in support of his allegation that the document in dispute was executed in October 1947. P. W. 2 Abdul Ghaffar is a close relative of the respondent. He went to the appellant to demand the money ‑at the request of the respondent. According to him the appellant did not pay him the money but instead gave a letter (Ex. 37) in which he promised to pay the money. He further stated that the occasion was the first Id of Haj after partition when Ex. 37 was given to him. In cross‑examination this witness admitted that he took a letter of the respondent to the appellant. No one else was present at that time except the appellant's son and the appellant instead of paying the money, gave the letter. According to the respondent, Abdul Ghaffar was sent by him to get the money from the appellant at Karachi. Ex. 37 was sent by the appellant through Abdul Ghaffar to him. It bears no date, but as far as he could remember he needed the money for celebrating Id‑Zul‑Haj. It was the first Id after the creation of Pakistan and the appellant instead of sending the money through Abdul Ghaffar, sent a letter (Ex. 37) to him. These facts are denied by the appellant. The appellant's version is that Exs. 36 and 37 were written on the same day. Both these documents were given by him to P. W. 1 Usman Hingoro for delivery to the respondent. He categorically denied the allegation that P. W. Abdul Ghaffar on the occasion of the first Id‑ul‑Zuha after partition demanded the amount in dispute on behalf of the respondent and instead of paying the money he gave letter (Ex. 37) for the satisfaction of the respondent. , P. W. I Usman Hingoro was also examined as a witness by the respondent. This witness was primarily examined for the purpose of proving that the appellant promised to pay the amounts in dispute at Tando Saindad in the District of Hyderabad, that the loan was arranged through him, that he accompanied the appellant to the house of the respondent at Saindad, that the respondent gave a cheque for Rs. 5,000 to the appellant for payment to Mr. Fatehchand advocate and that the appellant in his‑ presence executed the receipt (Ex. 36) and gave it to Mr. Fatehchand, advocate for sending it to the respondent. In his cross‑examination this witness was put a direct question that both Exs. 36 and 37 were written on the same day and were delivered to him for delivery to the respondent. He denied that the receipt (Ex. 36) was given to him for delivery to the respondent and stated that in fact this receipt was given to Mr. Fatehchand who sent it to the respondent. To the other question: whether the two documents were executed. on the same day, this witness gave an evasive answer and stated that he did not know whether the other receipt (Ex. 37) was passed on the same day or not. I have carefully examined the evidence of the appellant about the date of the execution of the letter (Ex. 37). In my opinion the version of the appellant that it was executed on the same day is correct and the respondent has failed to establish by reliable evidence that it was executed in October 1947. It is admitted by the respondent in his examination‑in‑chief that the appellant owed a sum of Rs. 3,500 before he brought P. W. Usman for the loan of Rs. 5,

000. He gave the loan of Rs. 5,000 as he understood that if there was settlement between the brothers, the old loan will also be paid. The appellant at that time had also undertaken to pay him back Rs. 3,500 at his place. To the same effect is the statement of P. W. Muhammad Usman. He has also stated that the appellant at the time of getting the cheque of Rs. 5,000 had assured the respondent that he would pay this amount and the amount of the previous loan to him at Tando Saindad. Admittedly the receipt for the cheque of Rs. 5,000 was not passed at the time of getting the cheque. It was for this reason that Ex. 36 was obtained at a later stage and I am satisfied that in the ordinary and natural circumstances the respondent would not only obtain a document from the appellant as evidence of the fact that he is indebted to him in respect of the amount of the cheque but would also be anxious to obtain documentary proof of the various amounts advanced by him as loan and in respect of which he possessed no written document. In these circumstances the respondent's effort will be to obtain two receipts, one for the loan of Rs. 5,000 and the other for securing the payment of the old loan. If in this light the receipts (Exs. 36 and 37) are read, it is abundantly clear to me that Ex. 37 was executed at the same time when Ex. 36 was executed. Ex. 37 reads as under :‑ "Janab Hazrat Sahibzada Haji Abdus Sattar Jan Sahib, I beg to submit that according to my memory I had received Rs. 2,000 bit by bit from you, and regarding Rs. 1,500 you gave me a chit, which were also recovered. In all, I received Rs. 3,500 Rupees' three thousand and five hundred from you, Be rest assured that whenever I am able to pay, I shall repay you the amount. (Sd.) Noor Mohammad Late Kazi Abdul Aziz Sahib. P. S. The cheque of Rs. 5,000 which you had remitted to Mr. Fateh Chand Advocate for paying to Saleh Mohammad, are exclusive of it. (Sd.) Noor Mohammed." The tenor of this document shows that it was executed at the request of the creditor who was anxious to get some evidence about the loan advanced by him and was executed at a time when the debtor was under an immediate obligation and was anxious to satisfy his creditor that he would not only pay the amount advanced to him at that time but also the past debts. That is why in this letter the appellant has stated that he received Rs. 2,000 bit by bit and that Rs. 1,500 he got through a chit, and that in all he received Rs. 3,500, and he gave him an assurance that whenever he will be able to pay he will pay this amount. There is a postscript on this receipt. This further strengthens my view that it is a clarification obtained from the debtor, so that later on he may not be able to put forward a plea that the receipt in question related to the loan of Rs. 5,000. 1 am there fore fully satisfied that the tenor of the document also supports the version by the appellant of the circumstances under which this document was executed. The learned Subordinate Judge was much impressed firstly, on account of the fact that the appellant did not take up the plea in the written statement that the two receipts were executed on the same day; secondly, that the papers used for the two receipts were different, one was written on the letter head and the other on simple white paper and thirdly, that the contention of the appellant is not borne out by the document as it refers to the cheque in the past tense and not in the present case. In my opinion none of these circumstances are of a conclusive nature. It is a well established principle of law that a party must succeed on the strength of his own case and cannot be allowed to take advantage of the weakness of the other side. In my opinion these circumstances do not show that Ex. 37 was executed in October 1947. The statement in the postscript that "the cheque of Rs. 5,000 which you had remitted to Mr. Fateh Chand Advocate" cannot disprove the fact that it was executed along with Ex.

36. A perusal of Ex. 36 will show that the writer of both the documents was in the habit of using the past tense. In Ex. 36 the writer has also used past tenses and said that the advocate concerned has already utilised the cheque for the settlement of the dispute pending before him, which is not a fact. Thus the use of past tense in the postscript of Ex. 37 is not in the least material for deciding the date of its execution. The other circumstance that the appellant did not take up the plea in the written statement that both the receipts were executed on the same day is also not fatal. The burden of the issue was on the respondent. It was for him to prove by satisfactory evidence that this document was executed in October 1947. The mere fact that the appellant did not say in para 2 of the written statement that this document was executed at the same time when Ex. 36 was executed, will not prove the case of the respondent. There is a definite denial on the part of the appellant. He has denied that it was executed in October 1947 and this was sufficient for purposes of an answer in the written statement. No importance can be attached to the fact that Ex. 37 was not written on the letter head. One fact, however, is clear that the age of the paper used shows that they were written about the same time. I have gone through the evidence produced by the respondent plaintiff in this case. The plaintiff has produced three witnesses. Two of them are interested persons and much reliance cannot be placed on such witnesses particularly when they have suppressed true facts and denied even admitted facts. The only other witness is P. W. 1 Usmari Hingoro. This witness at first supported the respondent's case but gave an evasive answer about the execution of the two receipts on the same day. The respondent did not produce the best evidence. He could have easily examined Mr. Fatehchand Advocate. I am not at all impressed with the case set up by the plaintiff of the circumstances in .which Ex. 37 was procured. I am also not prepared to believe the plaintiff's story that Ex. 36 was given to Mr. Fatehchand for delivery to the respondent. The respondent had no connection with this advocate and there is no explanation why the said document was given to him. The respondent's evidence on the whole is not satisfactory. Ex. 37 does not show that it was given in reply to a letter received from the respondent. In my opinion there is no reliable evidence to prove that the receipt (Ex. 37) was executed in October 1947 and was given to P. W Abdul Ghaffar. In this view of the matter it is unnecessary to give any opinion on the issue whether these documents are admissible in evidence as acknowledgments. This brings us to the alternative case of the respondent that the appellant under an agreement (Ex. 43) dated 6‑7‑1950 promised to pay a barred debt. The appellant has not denied the execution of the agreement. He has contested the validity of this document on two‑fold grounds. Firstly, that it was obtained under coercion and pressure of the police and secondly, that it is not an agreement contemplated under the provisions of section 25(3) of the Contract Act. The facts constituting the plea of coercion are that in the month of Ramzan S. I. P., Math accompanied by Mohammad Idris and Mohammad Ishaq, the two attesting witnesses, came to Karachi and asked the appellant to accompany them to Quetta Building under threat of arrest in a case under section 42.0, P. P.C. He was taken to the Quetta Building. On the way Ghulam, Farooq, a son of the respondent, also accompanied them. The respondent was sitting there with one Sahibzada Rampuri. Ghulam Farooq gave the appellant a draft of the agreement in dispute and asked him to execute it and in case of refusal, threatened to get him arrested. The appellant being a weak old man out of fear agreed to execute the document in question The document was written by Sahibzada Rampuri and the appellant was made to sign it. The respondent has denied his presence on this occasion. He has admitted the fact that his son Ghulam Farooq came to Karachi in the company of S. I. P., Math and two other persons for the purpose of getting payment. 1n answer to the question whether it is a fact that the appellant was threatened and coerced to execute the 1krarnama the respondent stated that the appellant could (not) say whether it was a fact or not and he could not state as he was not present The respondent did0 not produce his son Ghulam Farooq to deny the fact that the document in question was executed under coercion. In fact he tried to make out a case that one of the attesting witness,, Muhammad Ishaq, a retired S. I. P: was a relative of the appellant and therefore the question of coercion and undue pressure does not at all arise in the case. The appellant has dented that Mohammad Ishaq, retired S. I. P., was related to him The respondent examined P. W. Mohammad Ishaq retired folic; Inspector as his witness and there is no doubt that he is not related to the appellant. In fact Mohammad Ishaq is a Memon and the appellant is a Shaikh and unless proved the question of relationship between the two castes does not at all arise There is no explanation why S. I. P., Math was taken to Karachi and why the document was obtained in their presence. The only inference in the circumstances of the case is that the appellant was forced to sign the agreement in dispute under police pressure: on the threat of arrest in an imaginary case under section 420, P. P. C. On these facts I am satisfied that the document (Ex. 43) was not executed by the appellant out of his own free will and consent. It was executed under coercion and under threat of` arrest by S. I. P., Matli. In my opinion therefore this document cannot be held to be a valid document and no relief on the basis of such a document can be granted to the respondent. The learned counsel for the respondent has urged that the respondent's case can succeed on the basis of Letter Ex. 45 written on the 26th of July, 1950. According to the appellant Ex. 45 was also executed under coercion. This document was executed after twenty or twenty‑five days of the execution of Ex. 43, when the respondent came to Karachi. Mohammad Idris came to fetch the appellant and took him to the respondent at Quetta Building. The respondent told him that he was not satisfied with Ex. 43, and asked him to execute another document as dictated by him. He threatened to send a telegram and get him arrested and even showed him a telegram. Thereupon the appellant wrote out whatever was dictated to him by the respond ent At first he asked him to write Ex.

42. The respondent was not satisfied with that writing. He then dictated Ex. 45. to the appellant and after obtaining the signatures kept it with him. The appellant is not supported by any independent evidence. I am not inclined to accept the story set up by him. Even the facts disclosed by him do not show that Ex. 45 was executed under coercion as contemplated by section 15 of the Contract Act. Under this provision of law " coercion" is defined as under :‑ "Coercion is the committing, or threatening to commit, any act forbidden by the Indian Penal Code, or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement." In order to prove coercion it must be shown that the creditor applied pressure upon the debtor to procure his consent. The mere fact that an agreement was entered into in fear of criminal proceedings is not sufficient to avoid the agreement on the ground of coercion. I am of the opinion that simply because a creditor threatens his debtor to involve him in a criminal case, it will not be coercion if there be some basis for such a prosecution. Even in England where the law is much more stringent this view holds ground. Cotton L. J. in (1882) 10 Q. B. U. 572 at page 576 observed: "A threat to prosecute is not of itself illegal and the doctrine contended for does not apply, where a just and bona fide debt actually exists, where there is a good consideration for giving a security, and where the transaction between the parties involves a civil liability as well as, possibly, a criminal act. In my opinion a threat to prosecute does not necessarily vitiate a subsequent agreement by the debtor to give security for a debt, which be justly owes to his creditor." Under the circumstances I will hold that on this plea Ex. 45 cannot be kept out of consideration. The next question therefore for consideration will be whether any relief can be given to the respondent on the basis of Ex.

45. I will reproduce this document in order to find out whether it is an express promise to pay the debt barred by limitation within the meaning of section 25(3) of the Contract Act. The document is in the following terms: Karachi, 26th July, 1950. "Reverend Haji Abdus Sattar Jan Sahib, With due respects it is submitted that Mian Mohammad Idris has advised me that I should mortgage my building No. OT 9/19, situated in Old Town Quarter, with a bank for Rs. 22,000 and out of it to repay you Rs. 8,500 Rupees eight thousand five hundred in respect of Pronotes, Rs. 2,000 to the first mortgagee and the balance Rs. 11,500 should be kept with you as amanat till the decision of, the suit filed against you and me. May God Forbid, if the decree is passed by the Court, the decretal amount shall be paid on the spot and the balance be returned to me. It is a reasonable suggestion and so I and Mian Idris have put ar forth our efforts jointly. Wish us success. I apologise for the trouble I have given you. Hope you will excuse me. With best compliments, (Sd.) Noor Mohammad Kazi Abdul Aziz. P. S. Having approved of the above suggestion by Mian Mohammad Idris, I have put forth my efforts and I promise that if I succeed in my efforts, I shall repay you the amount. Kindly grant time (Sd.) Noor Mohammad Kazi Abdul Aziz." It shows that the appellant on the advice of Mian Mohammad Idris was willing to mortgage his property with a bank for Rs. 22,000 in order to repay the sum of Rs. 8,500 to the respond ent., to pay Rs. 2,000 to the first mortgagee and to keep the balance of Rs. 11,500 with the respondent as "amanut" till the decision of the suit filed by Viroomal. He further stated that it is a reasonable suggestion and he and Mian Muhammad ldris would put forth all their efforts jointly to make it a success. In my opinion the appellant in this part of the letter did not make any express promise to pay the amount in dispute to the respondent. He only informed him that this is what has been suggested to him by Mian Mohammad Idris and that he will make an effort to make it a success. 1n this letter there is also a postscript. In it the appellant approved the suggestion of Mian Mohammad Idris and in case of success promised to pay the amount due from him to the respondent, and for this purpose asked for further time. In my opinion this postscript also does not show that the appellant made any absolute promise to pay the barred debt to the respondent. It appears to me that an agreement for payment of a debt barred by limitation should be an absolute promise. If it is a conditional promise dependent on the happening of the success of certain events, it is the duty of the plaintiff to prove that these event's have happened and the defendant was to perform the promise. Failure to prove it is fatal to the success of a suit based on such a document. The appellant in this letter only said that he would pay these amounts if he is able to procure a loan from the bank and nothing more. I am fortified in this view by the observation of their Lordships of the Privy Council in Maniram v. Seth Rupchand (XXXIII Ind. App. 165). Their Lordships observed at page 172: "In a case of very great weight, the authority of which has never been called in question, Mellish L. J. laid it down that an acknowledgment to take the case "out of the Statute of Limitations must be either one from which an absolute promise to pay can be inferred or, secondly, an unconditional promise to pay the specified debt, or thirdly, there must be a conditional promise to pay the debt and evidence that the condition has been performed: In re River Steamer Co., Mitcell's Claim (L. R. 6 Ch. Ap. 822, 828). An unconditional acknowledgment has always been held to imply a promise to pay, because that is the natural inference if nothing is said to the contrary. It is what every honest man would mean to do. There can be no reason for giving a different meaning to an acknowledgment that there is a right to have the accounts settled, and no qualification of the natural inference that whoever is the creditor shall be paid when the condition is performed by the ascertain ment of a balance in favour of the claimant. It is a case of the third proposition of Mallish L. J., a conditional promise to pay and the condition performed." Similarly in Hafiz Allah Bakhsh v. Hamid Khan (A I R 1931 All. 160), it was held that an agreement to execute a mortgage to pay off a time‑barred debt does not amount to a promise to pay the debt. The letter under consideration can at best be said to be the conditional promise to pay the barred debt, the condition being to obtain the loan on mortgage. The respondent in this case has led no evidence to show that the appellant mortgaged his property and was able to pay the debt. In these circumstances it cannot be said that the appellant is bound by this agreement. I am therefore of the opinion that this document also does not save limitation and the respondent cannot succeed on its basis. I may further add that the respondent has not based his suit on this agreement for his claim against the appellant. He has treated this document only as an acknowledgment and wanted to use it for extending the period of limitation of his claim. The respondent cannot be allowed to set up new case in appeal and for this reason also this contention must fail. Mr. Castellino, the learned counsel for the respondent, however urged that we should give due weight to the appreciation of the evidence produced in the trial court by the learned Subordinate Judge. He has disbelieved certain witnesses and has believed certain witnesses and we should not disturb the finding of fact for this reason. This contention has no force as in my h opinion the learned Subordinate Judge did not consider at ail what Mohammad Usman bad stated about the second receipt anti has also not considered the attitude of the respondent to suppress certain facts from coming on the record. The learned Subordinate Judge also failed to consider the version of certain important. witnesses which would have an important bearing on the fact's) of the case. After careful consideration of the evidence produced by the parties I am of the opinion that the learned Subordinate Judge's conclusions are not correct. The respondent has failed to establish that the document Ex. 37 was executed in October 1947 and the respondent has also failed to satisfy that the document Ex. 43 was executed without any coercion. Even if I would have held that the document (Ex. 43) was not executed under coercion, it would not be of any help to the respondent as it is also not an unconditional promise and is attached with a condition that the appellant will execute a pro‑note in favour of the respondent for the claim in dispute. This agreement also will be hit by the provisions or section 25(3). For these reasons I will allow the appeal, but in the special circumstances of the case will order the parties to bear their own costs throughout. A. H. Appeal allowed.