2006 PLP 1139 (YLR)

MAULVI ANWARUL HAQ, J.

Records have been received and perused with the assistance of the learned counsel. On 6-1-2000 respondent filed a suit against the appellant for recovery of Rs.60,000 under Order XXXVII, C.P.C. According to the plaint the appellant received a sum of Rs.60,000 from the respondent and executed a promissory note promising to return the amount on demand. Upon failure of the appellant to repay the amount the suit was filed. Leave was granted to the appellant to defend the suit. In his written statement filed in Court on 30-5-2000, he denied the execution of the pro note or receipt of any money. He also referred to an application filed by the respondent in Police Station Shorkot City which was rejected and also to some proceedings before the "Surpunch". Following issues were framed by the learned trial Court: (1) Whether promissory note was executed between the parties and amount of Rs.60,000 was handed over to the Umer Daraz defendant? OPP (2) Whether the defendant has not paid the amount in spite of repeated demands? OPD (3) Whether the plaintiff is estopped by his words and conduct to file this suit? OPD (4) Whether the promissory note is based on fraud 'and mis?representation? OPD (5) Whether the promissory note has not been properly stamped? OPD (6) Whether the plaintiff has filed application at P.S. Shorkot and before Mehr Jahangir Haider Bharwana which proves mala fide of the plaintiff'? OPD (7) Relief. Evidence of the parties was recorded. Vide judgment and decree dated 28-2-2004 the learned trial Court decreed the suit.

2. Learned counsel for the appellant contends that the pro note was not attested by two witnesses and as such it was inadmissible in the evidence. Also states that evidence on record has been misread. He refers to the case of Muhammad Nawaz v. Abdul Sattar (2000 YLR 2927).

3. The pro note is on record as Exh.P.1. It is a printed document containing the said promise made by the appellant to repay the said amount and receipt. The receipt is attested by Anwar Ali and Muhammad Munir witnesses. Both these witnesses have appeared respectively as P.Ws.2 and 3 while respondent has appeared as P.W.1. It has been stated that the said amount was paid by the respondent to the appellant who executed pro note and receipt. I have examined the statement with the assistance of the learned counsel and nothing derogatory has been found in the cross-examination.

4. Now as against the written statement wherein only denial of execution of pro note and of receipt money is there, the appellant himself appeared as D. W.1 and proceeded to state that Haji Mumtaz was an arbitrator who found the respondent is claim to be false. He, however, admitted in cross-examination that there had been some money transaction between the parties but the accounts stand rendered. Haji Mumtaz D.W.2 stated that the appellant was paid Rs.1,00,000 by the respondent whereas he returned Rs.1,34,000 Zulfiqar D. W.3 stated that there was a dispute between the parties and that the appellant had pledged the papers of tractor and motorcycle with the respondent and had paid Rs.1,34,000 to the respondent whereas he had received only Rs.1,00,

000. To my mind, the said evidence has been very correctly discarded by the learned trial Court as there is no such plea in the written statement and it is by now well-settled that a party is not allowed to prove what it has not pleaded.

5. Now so far the said first contention of the learned counsel is concerned, I do find that the said judgment supports the said contention. However, pro note is a document which is defined in Negotiable Instruments Act, 1881, itself. Section 4 of the said Act, 1881 lays down the conditions C of a valid pro note and pro note Exh.P.1 duly fulfils the said conditions. It is not at all required to be attested by two witnesses or for that matter even by one witness. In any case the manner in which document i.e. pro note and receipt were executed as depicted, Exh.P.l does fulfil the standard laid down in the said judgment. I ave already noted above that the document is on printed form with receipt and pro note executed on the same and receipt stands attested by two witnesses. Both of whom appeared in the witness box. The R.F.A. is without any force and is accordingly dismissed in limine. F.M./U-13/L??????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.