P L D 1994 Peshawar 235 (PLP)

MUHAMMAD BASHIR KHAN JEHANGIRI, J.‑‑‑This is a Regular First Appeal against the decree of the learned Civil Judge 1st Class, Swabi, dismissing the plaintiff‑appellant's suit fir recovery of Rs. 1,00,000 alleged to have been advanced to the defendant‑respondent as `Qarz‑e‑Has'na.

2. The plaintiffs grandfather and that of the defendant were brothers' inter se. Besides, a s1ster of the plaintiff is married to one Abdul Sami Bacha while Abdul Sami Bacha's s1ster is married to the defendant. The plaintiff alleged in the plaint and later reiterated in the witness‑box that he advanced a sum of Rs.60,000 and Rs.40,000, to the defendant by virtue of two cheques dated 25‑7‑1984 on the National Bank of Pakistan Limited, Swabi Branch and Baja Branch respectively which the defendant had encashed but the defendant had failed to re‑pay the loan. In the written statement the defendant pleaded that the cheques had been issued not as a loan but "as re‑payment of a sum already owing to the defendant".

3. The pleadings of the parties were reduced into six issues including the relief but the controversy surviving for determination gleaned from the following two issues:‑‑ "(2) Whether the plaintiff has advanced a loan of Rs.1,00,000 to the defendant on the basis of bank cheques mentioned in para. No.1 of the plaint?' (4) Whether the amount paid to defendant through cheques NO.AOW. 322810 dated 25‑7‑1984 and No. G. 20195941, dated 25‑7‑1984, was in fact the amount of defendant outstanding against the plaintiff?" The learned trial Judge on consideration of the evidence answered issue No.2 against' the plaintiff while issue No.4 in favour of the defendant. In consequence, the plaintiff was non‑suited.

4. Haji Muhammad Zahir Shah, learned counsel for the plaintiff appellant, has contended firstly, that the plea of the defendant‑respondent in the written statement barely was that the plaintiff owed him money which he had paid to him but in the witness‑box he had introduced a new case saying that the amount paid to him represented the price of bricks which, being hot pleaded in the written statement, was violative of the principle of secundum allegata et probata; and, secondly, that once the defendant had acknowledged the receipt of the disputed money the onus probandi shifted to him to prove that the amount received by him was in lieu of the price of bricks.

5. Conversely, Sheikh Wazir Muhammad learned counsel for the defendant/respondent, placed implicit reliance on Allah Ditta v. Allah Wasaya (PLD 1956 Lahore 521) to contend that acknowledgment of the receipt of money on the basis of cheques notwithstanding, the plaintiff was not absolved of initial burden to prove that the amount in dispute was advanced by way of loan which he had miserably failed to re‑pay. We find substance in the contention aforesaid. In the precedent case of Allah Ditta cited above, late Kaikaus, J., as his Lordship then was, while relying on Bihari Lal v. L. Chanda Lal (41 PLR 650) had held in a very similar case that if the payment of money is admitted there is no presumption in law that it was intended to be repaid and it is for the person who comes into Court for the recovery of money to prove that it was intended to be repaid.

6. The argument of the learned counsel for the appellant, we are afraid, is not correct, for, the mere fact that one person paid money to another does not give rise to any presumption‑that he did so as a loan. There is not an iota of evidence to show that the basis of the present suit is a contract of loan but the mere fact that the money was paid is not presumptive proof of the contract. Legally, it is for the plaintiff to prove the contract. It is also on this premise that there is a Qur'ani Injunction that requires reducing into writing any transaction between the two believers which must be duly witnessed by two witnesses. The first contention raised by the learned counsel for the appellant has thus no merit and stands repelled.

7. Again the defendant would have been well advised to have brought some evidence on the record to raise his plea by specifically pleading it in the written statement and then proved in evidence in rebuttal. Nonetheless, in the circumstances of this case, the defendant's omission to plead the assertion in the written statement would not in any manner strengthen the appellant's claim on the reasonings recorded by us in para. 5 ante.

8. There is another reason with regard to the violation of the rule of secundum allegata et probata which would not be of any consequence. The onus of establishing the payment of money to the defendant‑respondent by way of `Qarz‑e‑Hasna' was on the plaintiff‑appellant and not on the defendant respondent. He had, therefore, to succeed on the strength of his own evidence and not on the weakness of the evidence of the defendant‑respondent.

9. In the circumstances, we have come to the conclusion that no ground has at all been made out for holding that the learned trial Court has not y appraised the evidence in the case upon correct principles. There were also in our view, no probabilities in support of the appellant's case. This appeal must, therefore, in our opinion fail and is accordingly dismissed with costs. A.A./1573/P Appeal dismissed.