Abdul Rasheed vs Muhammad Ameer

HCJD/C-121

ORDER SHEET.

LAHORE HIGH COURT,

MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

R. F. A. No. 239 / 2015

Abdul Rasheed Versus Muhammad Ameer

JUDGMENT

Date of Hearing: 13.01.2022 Appellant By: Mr. Asmat Ullah Khan Niazi, Advocate Respondent By: Mr. Muhammad Hanif Chohan, Advocate ABID HUSSAIN CHATTHA, J: This Appeal is directed against the Judgment and Decree dated 21.11.2015 passed by the District Judge, Lodhran, whereby, the suit of the Respondent for recovery of Rs. 373,800/- on the basis of a pronote and receipt dated 30.06.2012 was decreed with costs in favour of the Respondent and against the Appellant.

2.Succinctly, the Respondent averred in the plaint that he and the Appellant are close relatives and the Appellant in order to meet a pressing need with respect to his brick kiln business requested for an amount of Rs. 400,000/- from the Respondent. Accordingly, the Respondent in presence of the witnesses was provided with an amount of Rs. 373,800/- as “Qarz-e-Hasna” on the basis of pronote and receipt dated 30.06.2012 (the “Pronote and Receipt”) which was returnable within one month. However, when the Respondent demanded the said amount, the Appellant refused to pay back the same. As such, the Respondent was constrained to file the suit for recovery of the said amount on the basis of Pronote and Receipt under the Provisions of Rule 2 of Order XXXVII of the Code of Civil Procedure, 1908 (the “CPC”).

3.The Appellant filed written statement and resisted the suit by controverting the contents of the plaint on legal as well as factual plane.

The Appellant specifically denied the execution of Pronote and Receipt by stating that the same were fake and fictitious. The receipt of consideration was also denied. It was also stated that the parties did not have cordial relations and civil and criminal cases are pending between them. As such, the Pronote and Receipt have been manufactured by the Respondent with mala fide intention.

4.Out of the divergent pleadings of the parties following issues were framed:-

1.Whether the defendant received Rs. 373,800/-from the plaintiff and executed pronote dated 30.06.2012 in presence of the witnesses? OPP

2.Whether the plaintiff has no cause of action to file the suit?

O.P.D.

3.Whether the suit is not maintainable in its present form?

O.P.D.

4.Whether the plaintiff is stopped by his words and conduct to file the instant suit? O.P.D.

5.Whether the plaintiff is entitled to decree as prayed for?

O.P.P.

6.Whether the defendant is entitled to get special costs from plaintiff U/S 35-A of the Code of Civil Procedure 1908? If so to what extent? O.P.D.

7.Relief.

5.Both the parties led their oral as well as documentary evidence in support of their respective versions.

6.Learned counsel for the Appellant submitted that Manzoor Ahmad (PW-1) was scribe of Pronote and Receipt, who admitted that he did not enter the same in his Register Waseeqa Nawees and also confirmed that he did not obtain signatures and thumb impressions of the Appellant. Further, no amount was passed on before him between the parties. He added that the testimony of the said witness clearly proved that the Pronote and Receipt were fake documents but the trial Court did not appreciate the evidence of PW-1. He further contended that the parties were business partner in brick kiln regarding which an F.I.R. was registered and suit was also filed between the parties which clearly proved that the Appellant and Respondent had a mutual business and on account of certain differences with respect thereto, the Respondent prepared the fake Pronote and Receipt and filed a false suit against the Appellant with mala fide intention. He also

pointed out that allegedly the amount was received on 30.06.2012, whereas, the suit was filed on 31.07.2012, that is, exactly one month after the date of receipt of alleged loan. He relied upon cases titled, “Syed Ali Hussain Naqvi v. Ali Sher Naqvi” (2005 CLC 1751); “Muhammad Hussain v. Malik Allah Yar Khan” (2012 CLC 1679); and “Lal Din v. Muhammad Saleem (Deceased) through L.Rs. and others” (2019 CLD

7.Conversely, learned counsel for the Respondent defended the impugned Judgment and Decree by submitting that the Respondent clearly established his case on the basis of evidence produced by him. Two marginal witnesses were produced alongwith scribe of the Pronote and Receipt. The Respondent himself appeared as PW-2 and supported the contents of the plaint. The oral evidence is consistent with the contents of the plaint and the witnesses remained unshaken during cross examination. The oral and documentary evidence produced by the Respondent clearly established his case and as such, the impugned Judgment and Decree are unexceptional.

8.Arguments heard, record perused.

9.Issue No. 1, as reproduced above, was the pivotal issue between the parties. The Respondent himself appeared as PW-2 and deposed that the Appellant requested him to provide Rs. 400,000/- as Qarz- e-Hasna and he was given Rs. 373,800/- in the presence of his brother Abdul Rasheed (PW-3) and Muhammad Sajjad (PW-4). In order to reduce this fact into writing, Muhammad Sajjad was asked to bring Manzoor Ahmad, Waseeqa Nawees (PW-1) who prepared the Pronote (Ex.P-1) and Receipt (Ex.P-2) which were signed and thumb marked by the Appellant as well as by the witnesses. During his cross examination, the Respondent stated that he was in the business of sale-purchase of wheat and cotton since 1975. The amount given to the Appellant was kept in the house of his sister Mst. Hajra Bibi, who is mother of Muhammad Sajjad. Responding to a suggestion, he admitted that in the past, he got registered an F.I.R. No. 518/ 2011 dated 19.08.2011 under Section 420 / 406 of the Pakistan Penal Code, 1860 at Police Station City Lodhran against his brother and the Appellant and the same pertained to dispute of Rs. 700,000/- which they

returned and a compromise was effected regarding the said FIR. However, he denied that he was a shareholder in lease of brick kiln business owned by one Imam Din. PW-3 & PW-4 also deposed on the same lines and remained consistent in their depositions regarding the pleadings in the plaint. There is no material contradiction in their testimonies. PW-1, the scribe of the Pronote and Receipt also testified that the same were prepared by him and bears his signatures and stamp which were prepared on the instructions of the parties in the presence of the witnesses. He also testified that he obtained thumb impressions and signatures of the Appellant on the Pronote and Receipt. However, in his cross examination, he stated that he did not enter the Pronote and Receipt in his Register Waseeqa Nawees and did not obtain signatures and thumb impressions of Appellant as well as witnesses in his Register Waseeqa Nawees and no amount of consideration was passed on before him between the parties. Nevertheless, he candidly admitted that the parties had stated before him that consideration had already been passed on between them. He also testified that he lived in the same Mohalla and knew the parties to the suit.

10.The evidentiary resume of the Respondent highlights that the Pronote and Receipt were duly executed in the presence of witnesses and were scribed by Manzoor Ahmad. Consideration was duly received by the Appellant. The Pronote and Receipt were consisting of two parts. The first part was the Pronote which was signed and thumb marked by the Appellant, whereas, the second part was the Receipt which was thumb marked and signed by the Appellant and the same was also witnessed by two witnesses as stated above.

11.In rebuttal, the Appellant could merely bring on record an F.I.R. and record of past litigation between the parties. However, nothing is available on record to prove that the Pronote and Receipt were prepared by fraud and cheating by the Respondent or the same were never executed and signed by the Appellant. In fact, DW-1 in his examination-in-chief deposed beyond his pleadings and asserted that he had taken some land on lease in 2008 on which he constructed brick kiln in which the Appellant and his brother were partners and in terms of rendition of accounts regarding the same, the Respondent filed suits in the year 2012 and tried to make up a

story that on account of past civil and criminal litigation, the Pronote and Receipt were fake. Further perusal of Ex.D-1 to Ex.D-6 reveal that a suit for permanent injunction between the parties was dismissed for non- prosecution on 31.01.2013 and an F.I.R. No. 518 / 2011 also dates back to the year 2011.

12.The parties are admittedly close relatives. Muhammad Sajjad (PW-4) stated that the Respondent is his real maternal uncle (Mamoon) and Appellant is his real paternal uncle (Chacha). Abdul Rasheed (PW-3) stated that the Respondent is his real brother and Appellant is his paternal cousin (Chachazad). It is quite surprising that the Appellant could not produce any witness in support of his contentions. The execution of Pronote and payment of consideration was duly proved by the Respondent. Conspicuously, the Appellant in his cross examination while responding to a suggestion candidly stated that he has no objection regarding comparison of his signature and thumb impression on the Pronote and Receipt but later, an application was filed by the Respondent for seeking an expert opinion regarding his thumb impression on Ex.P-1 and Ex.P-2 which was vehemently resisted by the Appellant. This resistance constrained the trial Court to dismiss the said Application vide Order dated 03.11.2015. The Appellant whose main case was based on the assertion that he had not affixed his signature and thumb impression on the Pronote and Receipt, instead of moving the Court to that effect by himself resisted a last opportunity provided to him to prove this fact by the Respondent. Hence, he effectively resiled from his stance. Needless to state that the case law relied upon by the Appellant is distinguishable and is not attracted to the facts and circumstances of the case.

13.Accordingly, there is no merit in the instant Appeal and the same is dismissed with costs.

(Abid Hussain Chattha) Judge *Waqar*