2015 PLP 1776 (MLD)

WAQAR AHMAD SETH, J.

Iftikhar Hussain has filed this revision petition under Section 115, C.P.C. against the judgment and decree dated 18-9-2007, whereby Additional District Judge-III, Abbottabad on acceptance of appeal of respondent No. 1, set aside the judgment and decree of trial court dated 26-5-2006 and dismissed the suit of petitioner.

2. The petitioner filed a suit for recovery of Rs.3,00,000 along with profit/markup @ Rs.13500 per month since August, 1998 till final disposal of case or its payment. Initially, the respondents were summoned but they did not turn up and ultimately the suit was decreed ex parte. However, respondent No.1 moved application for setting aside of the ex parte decree, which was allowed. The respondent No.1 contested the suit by filing written statement and learned Civil Judge after recording evidence and hearing the parties decreed the suit on 26-5-2006. Feeling aggrieved, the respondent No.1 preferred appeal and learned appellate Court after hearing the parties, on acceptance of appeal set aside the judgment and decree of trial court and dismissed the suit of petitioner, hence, the instant petition. The respondent No. 1 paid cost of Rs.4000, as ordered by this Court on 29-9-2014, today in court to the petitioner.

3. Arguments heard and record perused.

4. The case of petitioner is that the defendants demanded from him Rs.3,00,000 for business purposes and offered monthly profit. The defendants executed Iqrarnama whereby they promsed to pay Rs. 13500 per month as profit on the said amount since August, 1998. The petitioner time and again approached the respondents for payment of the principal amount and the agreed monthly profit but to no avail. The petitioner ultimately served them with legal notice but in vain and filed the instant recovery suit. The defendants were initially summoned by the trial court but they did not turn up and petitioner in support of his case produced the marginal witnesses of the deed as PWs-1 & 2, however, after setting aside of exparte decree Muhammad Sohrab, marginal witness was once again examined as PW-1 whereas other marginal witness Malik Irshad, who was a petition-writer and cited as marginal witness to the deed, having dead could not be examined. The petitioner produced son of deceased petition-writer, namely, Sardar Muhammad Rafique as PW-4, who categorically verified the signatures and entries made by the petition-writer, as secondary evidence without any objection from the other side. Respondent was given chance for cross- examining PW-4 but he could not be shattered on material aspects of the case. The petitioner produced the Notary Public in support of his case as PW-3, who also supported the execution of the deed. The execution of Iqrarnama (Exh.P.W.1/1) stands proved on record and the learned trial Court, in the light of evidence on record, rightly decreed the suit of petitioner whereas the learned appellate court has wrongly and illegally set aside the well reasoned judgment of trial Court. The judgment and decree of appellate court are liable to be set aside.

5. Consequently, this revision petition is allowed, the judgment and decree of appellate court are set aside and that of trial court stand restored. No order as to costs. ZC/481/P Revision allowed.