2006 PLP 1335 (MLD)

MIAN HAMID FAROOQ, J.

Facts of the case, ,necessary for the decision of the present second appeal, are that the respondent/plaintiff filed the suit for recovery of Rs.12,16,000, before the civil Courts, against the appellant, on the basis of various documents. Detail of the suit amount as given in the plaint is as follows:-- (i) Principal amount?????????????????????????????????????????? Rs.4,00,000 (ii) Profit at amount of?????????????????????????? Rs.40,8000????? ??????????? Rs.4,00,000 @ 3% ??????????? per cent P.M. from ??????????? 1-11-1996?????? to ??????????? September, 1999. (iii) Other penalties??????????????????????????????????????????? Rs.40,8000 ??????????? Total??????????????????????????????????????????????????? Rs.12,16,000 It was also prayed in the suit that future profit, at the rate of 3% over Rs.4,00,000 be also granted from November, 1999. The appellant/defendant resisted the suit through filing the written statement and besides taking legal objections acknowledge the receipt of a sum Rs.3,00,000 from the respondent. It was pleaded by the appellant that the respondent obtained signatures on blank papers, which were subsequently converted into agreements, thus the agreements are fictitious. Following issues were framed:-- ISSUES:-- (1) Whether the suit is bad for joinder of cause of action? OPD (2) Whether the suit is undervalued for the purposes of court-fee and jurisdiction? If so, what is the correct valuation? OPD (3) Whether the disputed agreements are void ab initio and the same are fictitious and fake one? OPD (4) Whether the plaintiff is not licence-holder under the Money Lender Act. Therefore, he is not entitled to receive interest? OPD. (5) Whether the plaintiff is entitled to a decree for the recovery of Rs.12,16,000 along with profit at the principal amount of Rs.4,00,000 @ per month as prayed for? OPP The learned trial Court recorded respondent's documentary as well as oral evidence, however, the appellant. did not produce any witness, therefore, his evidence was closed on 19-3-2003. The learned trial Court, after hearing the arguments of the learned counsel, passed a decree for recovery of principal amount of Rs.4,00,000 together with B profit at the rate of 10% w.e.f. 1-11-1996, vide judgment and decree dated 11-5-2004. Appellant's first appeal, against the said, decree, was dismissed by the learned Additional District Judge, vide judgment and decree dated 8-12-2004, hence the present second appeal.

2. Learned counsel for the appellant contends that although the appellant in his written statement raised the objection that the suit was barred by time, yet no issue, on the said controversy, was framed by the learned trial Court. He has added that the learned trial Court was under legal obligation to frame proper issues. He has relied upon Ananta Kumar Majumdar and others v. Gopalk Chandra Majumdar and others (PLD 1961 Dacca 65). Conversely, the learned for the respondent has stated that the suit was within time, therefore, there was no need to frame issue of limitation, moreso, when the appellant did not agitate the matter before both the Courts below.

3. I have heard the learned counsel and examined the summoned record of both the Courts below. It is true that the appellant in his written statement raised certain preliminary objections, including the one that the suit is barred by time, yet it is equally true that the respondent, in para 5 of the plaint, has referred to letter dated 7-11-1996 (Exh.P.7), wherein the appellant has acknowledged his liability to the extent of Rs.4,00,

000. It would be appropriate to reproduce para 5 of the plaint, which reads as follows: "That in the meanwhile, the plaintiff proceeded to Quetta due to sudden death of his wife in November, 1996, the defendant wrote with his own handwriting letter dated 7-11-1996 regarding condolence/deteriorating his business conditions and asked for having lenient view for repayment schedule. Furthermore, the defendant acknowledged his liability of Rs.4,00,000 as principal amount. The defendant further admitted in this letter that this letter be taken as receipt of Rs.4,00,000 and the plaintiff can recover the said amount from his assets." Interestingly, the appellant, in his written statement, has admitted para 5 of the plaint. It appears appropriate to reproduce para 5 of the written statement, which reads as follows:-- It flows from the above stance of the appellant that he admitted that he addressed letter dated 7-11-1996 (Exh.P.7) to the respondent, wherein he acknowledged to have received a sum of Rs.4,00,

000. In view whereof, period of three years for filing the suit for recovery will commence from the date, when the appellant acknowledged to have borrowed amount of Rs.4,00,

000. Thus, in view of the acknowledgement of loan, on 7-11-1996, the suit filed on 3-11-1999 was within the limitation period, therefore, there was no need to frame any issue regarding limitation. The appellant did raise the objection qua the limitation, but the learned trial Court after examining pleadings of the parties rightly framed the aforenoted issues, as in view of the pleadings of the parties, issue of limitation does not arise.

4. I have examined both the judgments and find that both the Courts have rightly appreciated the evidence on record, which was only produced by the respondent (as appellant's right to produce evidence was closed) and reached to the proper conclusions, which, to my mind, are not open to exception. The judgments of both the Courts are not only in accordance with the record of the case but the same are also in c consonance with the law on the subject. Although the respondent filed the suit for recovery of Rs.12,16,000, which includes the profit from 1-11-1996 to 9-9-1999, and other penalties, as well, yet the learned trial Court did not pass the decree of the said amount and very wisely passed the decree only regarding the principal amount together with the profit w.e.f. 1-11-1996. The learned appellate Court did not fall into legal errors and legally maintain the judgment and decree. Both the Courts acted in accordance with law.

5. It is settled law that the second appeal lies on the grounds mentioned in section 100 of C.P.C. and not on questions of facts. The learned counsel has not been able to show that how the second appeal falls within any of the grounds mentioned in section 100 of C.P.C. No error of law has been committed by both the Courts below, while rendering the concurrent findings of facts.

6. I have examined the impugned judgments rendered by both the Courts below, which are legal, un-exceptionable, apt to the facts and circumstances of the case and do not call for any interference by this Court at the stage of second appeal. It is settled law that the concurrent findings of facts are not liable to be interfered by this Court in exercise of its appellate jurisdiction, conferred upon it under section 100 C.P.C. Reliance is placed on Muhammad Shafi and another v. Sher Ali (1970 SCMR 510), Hafiz Muhammad Hussain and another v. Abbas Khan and D another (1981 SCMR 1233), Fazal Rahman v. Amir Haider and another (1986 SCMR 814), Abdul Ghani v. Muhammad Akhtar (1988 SCMR 137), Abdul Rashid v. Bashiran and another (1996 SCMR 808), Haji Sultan Ahmed through Legal Heirs v. Naeem Raza and 6 others (1996 SCMR 1729), Mussarat Sultana v. Muhammad Saeed (1997 SCMR 1866), Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 SC 617) and Muhammad Amir v. Khan Bahadur and another (PLD 1996 SC 267).

7. Upshot of the above discussion is that the present appeal is devoid of any merits, thus, the same stands dismissed with no order as to costs. H.B.T./A-63/L???????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.