2019 PLP 1590 (MLD)

SHAKEEL AHMAD, J.

This appeal is directed against the judgment and decree of the learned Additional District Judge-I, D.I.Khan, dated 26.04.2017, whereby respondent's suit for the recovery of amounting to Rs. 27,30,000/- (twenty seven lac and thirty thousand), against the appellant under provisions of Order XXXVII, Rule 2, C.P.C., based upon promissory note, was decreed.

2. The facts of the case, in brief, are that, on 26.06.2017, respondent filed a suit for recovery of amount mentioned above, under the provisions of Order XXXVII, Rule 2, C.P.C, stating therein that appellant had friendly relations with him, who borrowed Rs. 27 lac from him and executed a pronote dated 13.10.2014 (Ex. PW-2/1) and receipt (Ex.PW-2/1), when the respondent demanded the return of the amount, the appellant refused, resultantly, the suit was filed. After service of summon, the appellant put his appearance, submitted an application for leave to appear and defend, which was allowed by the learned trial Court, the pleadings of the parties were reduced to the following issues and parties were directed to produce the evidence. Issues.

1. Whether the plaintiff has got a cause of action and locus standi? OPP.

2. Whether the suit is stopped to sue by his own words and conduct? OPD.

3. Whether the suit is competent in its present form? OPP.

4. Whether plaintiff has come to the Court with clean hands? OPP.

5. Whether defendant has obtained loan of Rs. 27,50,000/- from plaintiff and executed promissory note alongwith receipt dated 13.10.2014 in favour of the plaintiff? OPP.

6. Whether the promissory note is fake, false and bogus? OPP.

7. Relief.

3. The respondent produced Jan Muhammad petition writer, the scribe of the pronote, who produced extract of his register and tender it in the evidence as Ex.PW-1/1. Inayatullah PW-2, the marginal witness of the pronote Ex.PW-2/1, while he himself appeared as PW-3. Conversely, the respondent examined Karim Bakhsh and Imam Bakhsh as DW-1 and 2.

4. On the conclusion of trial, the learned Additional District Judge, giving findings on issues Nos. 1, 5, 6 and 7 in favour of the respondent and also deciding issues Nos. 3 and 4 against the appellant, decreed the suit, hence this appeal.

5. Learned counsel for the appellant argued that findings of the learned trial Court on all the issues are contrary to the evidence produced on record. He next argued that PW-2 Inayatullah, marginal witness of the pronote and receipt is related to the respondent, therefore, his testimony to prove the execution of Ex. PW-2/1 is inadequate and should be ignored. It was lastly argued that in accordance with the requirement of Articles 17 & 79 of the Qanun-e-Shahadat Order, 1984, both the marginal witnesses were required to be produced and in absence of any explanation for non-examination of the other marginal witness, the pro note did not stand and prayed for setting aside the impugned judgment.

6. Conversely, learned counsel for the respondent has supported the judgment and decree of the trial Court.

7. I have heard learned counsel for the parties and have perused the record with their able assistance.

8. The contention of learned counsel of the appellant that pro-note Ex. PW-2/1 and receipt reduced into writing on the back of it has not been proved in accordance with law, suffice it to say that PW-1 Jan Muhammad scribe of the pro-note not only scribed the documents, but also appeared as its marginal witness, second marginal witness of the documents Inayatullah appeared as PW-2. Thus the respondent fulfilled the requirement of Articles 79 and 17(2)(a) of the Qanun-e-Shahadat Order, 1984. In this behalf, reliance can be placed on the judgments reported as (Nazir Ahmad and another v. M. Muzaffar Hussain) (2008 SCMR 1639), Ghulam Asghar and 3 others v. Mst. Aisha and 13 others (2004 YLR 1376), Muhammad Sarwar Khan through Legal Heirs v. Salamat Ali and 2 others (2012 CLC 94).

9. Both the above mentioned witnesses were cross-examined at length and I do not find any discrepancy in their statements, though PW-2 is related to the respondent, but in the facts and circumstances of the case, seems to be natural witness, who could be present at the time, when the documents were executed, the witnesses are consistent about the venue and time and date of execution of the documents. PW-2 & 3 are consistent on the venue of payment of the loan and appellant and their testimonies could not be shattered in the cross-examination.

10. Coming to next contention of the learned counsel for the appellant argued that PW-1 scribe of the documents admitted this fact in his statement that the amount was not paid by the respondent/plaintiff to the appellant/defendant in his presence, but this admission would not dislodge presumption under Section 118 of Negotiable Instruments Act, 1881, relating to execution of negotiable instrument for consideration in favour of the respondent/plaintiff. In this context reference may be made to the case reported as Sardar Muhammad Ramzan v. Muhammad Yahya Khan (2000 CLC Pesh 296). Even, a consideration paid earlier in time was a good consideration as it was not necessary that consideration for the promissory note should be paid on the same date on which the pro-note is executed. It was explained by PW-1, in his statement that appellant had admitted before him, payment of loan to him by the respondent. In this behalf reference may be made to the case reported as Mst. Sajida Abbas Zaidi v. Syed Arshad Ali Jafri (1990 CLC 1018).

11. Another interesting aspect of the case which needs discussion is that the appellant denied his thumb impression over the promissory note, however, during arguments, the counsel for the parties jointly showed their willingness to send the sample of thumb impression of the appellant to laboratory with the thumb impression available on the pro-note for comparison, which is reflected from the order sheet No. 23 dated 05.04.2017, but on 21.04.2017, the learned counsel for the appellant submitted an application to the learned trial Court and stated that he does not want to send his thumb impression to the expert/FSL for comparison. Moreso, promissory note Ex. PW-2/1 was tendered in evidence without any objection on behalf of the appellant. Therefore, the admission of promissory note could not be called in question at a belated stage. If any case laws are needed, one could readily refer to judgment reported as Sirbaland v. Allah Loke and others (1996 SCMR 575), Sardar Muhammad Ramzan v. Muhammad Yahya Khan (2000 CLC Pesh. 296), Muhammad Hanif v. Kissan Dos (Pvt.) Limited (2003 CLD 224), Bushra Bibi v. Judge Family Court, Bahawalpur (PLD 200 Lahore 95).

12. However, claim of the respondent for recovery of Rs. 30,000/- as fee of the counsel was not borne from the evidence on record, therefore, findings of the learned trial Court is reversed to that extent and it is held that the respondent is not entitled for decree to that extent only, however, rest of the finding of the learned trial Court are correct and needs no interference.

13. For what has been discussed above, I hold that respondent is entitled for decree for recovery of Rs. 27 lac only. This appeal is partially allowed. ZC/129/P Appeal partially allowed.