Syed ALI HUSSAIN NAQVI vs ALI SHER NAQVI

' Brief facts leading to the filing of this appeal are that suit of recovery of Rs,2,00,000 was filed by the respondent against the present appellant on the basis of promissory note. The suit was filed under Order XXXVII, rule 2 of the Code of Civil Procedure.

2. It was alleged in the plaint that the present appellant obtained a sum of Rs,2,00,000 and executed a pro note and receipt dated 2-9-1999 before the witnesses for a period of one year, commencing from 2-9-1999 to 2-9-2000. This amount was to .Be returned positively by 3-9-2000 but appellant failed to do so and pro note was presented to him for the payment, to which he refused. Hence the suit was filed.

3. In the written statement, the appellant submitted that the respondent did not pay Rs,2,00,000 to him which was the consideration amount of pro note. It was further submitted that in 1997, Rs,2,00,000 were paid to the present appellant by the respondent at a monthly profit of Rs,4,800 and he had returned the entire amount of Rs,2,00,000 which he received in 1997 and had also paid monthly profit accrued thereupon and except for a payment of Rs,3,000 no amount was due from him. Further submitted that respondent offered to invest another Rs,2,00,000 for which the said pro note dated .2-9-1999 was executed by him. According to the appellant, though the pro note was executed, yet the payment was not made to him, as the respondent had promised to pay the amount at his house, which he did not. The learned trial Court framed the following issued:-

(1) Whether the plaintiff is entitled to the decree of recovery of Rs,2,00,000 on the basis of promissory note as prayed for? OPP

(2) Whether the receipt and promissory note is without consideration and the suit is not maintainable? OPD

(3) Relief.

4. The respondent produced two witnesses Syed Qurban Ali; P.W.1 Muhammad Abid All P.W.2 and himself appeared as P.W.3 whereas Khawaja Mazhar Hussain appeared as D.W.1, Ali Husnain as D.W.2. The learned Additional District Judge, Sahiwal decreed the suit, against which the present appeal has been preferred.

5. In support of the appeal, learned counsel for the appellant submitted that the suit was decreed on the statement of Syed Qurban Ali P.W.1; that P.W.2 Muhammad Ali, a marginal witness, deposed that the respondent had said that he would make the payment of pro note at his house; that the pro note and receipt were without consideration as the amount mentioned therein was not paid, therefore, they were void and could not be enforced under the law ; that this was a case of misreading and non-reading of evidence. Reliance was placed on PLD 1995 Lah.

395.

6. I have carefully examined the submissions made by the learned counsel for the parties and have also gone through the evidence.

' On scanning the evidence so produced by the respondent it has been noticed that P.W.1 Syed Qurban Ali, father of the appellant deposed that he was meeting the appellant after 3-1/2 years and during this period he also had no conversation with him. This statement was made in the Court on 7-9-2001, which meant that he had not met the appellant since February/March, 1998. He admitted that the amount was not paid before him. He was also not aware as to the place, the amount that was alleged to be paid and that too before whom it was paid? He even did not know as to what a pro note was? The witness also stated that the appellant met him and he inquired that whether he had received any money from the present respondent to which he acknowledged.

It has been also stated by him that the appellant, though his son was not obedient to him and there was a dispute between the family. The resume of the statement so given by P.W.1 shows that he had not met the appellant since February, 1998 and had not even talked to him, so, the question of making any acknowledgement was not possible. It appears that because of the family dispute, the P.W.1 had made the statement against his son the appellant. It is also an admitted fact that he is not a marginal witness to the pro note etc. Under the circumstances, this witness cannot be relied upon and does not help the respondent. The next witness produced by the respondent is P.W.2 Muhammad Ali. He is a marginal witness on the pro note, and receipt dated 2-9-1999 which is Exh.P.1/1 and Exh.P.1/2. He has stated that the signatures on the pro note etc. Were obtained in the District Courts. He has categorically stated that no payment was made before him and that he was not aware of any amount. As the amount was not paid before P.W.2, therefore, this witness also does not help the respondent even though he was a marginal witness. His statement would show that the pro note and receipt Exh.P.1/1 and Exh.P.1/2 were without consideration. The respondent appeared as P.W.3. In his examination-inchief, he deposed that the defendant came to his house and he paid the amount, and at that time pro note was not before him. He further stated that pro note and receipt Exh.P.1 was executed in the District Courts and that the same were signed by the appellant and he had also signed on the stamps. In his cross-examination he deposed that amount was paid 2/3 days before the execution of pro note. Muhammad Bashir, who is the Deed- Writer, had appeared as P.W.4. He has deposed that pro note Exh.P.1 and receipt have been written by him and according to him they were signed and thumb-marked in his presence.

7. The appellant in his evidence has produced D.W.1 Khawaja Mazhar Hussain who has stated that he was a marginal witness to the pro note and receipt and that he signed the same at the instance of Ali Sher and that no payment was made to the appellant before him and he had told him that he would make the payment at his house, the witness was not cross-examined at all on this fact by the respondent therefore, this stands unrbutted. Ali Husnain, the appellant himself appeared as D.W.2 and stated that the amount was not paid to him at the time of the execution of the pro note and receipt, and he was told by the respondent that he would make the payment at his house. He also stated that the relationship between him and his father were not good for the last 3-1/2 years.

8. In nutshell the evidence, so produced by the parties show that the execution of the pro note and the receipt Exh.P.1/1 and Exh.P.1/2 have been admitted by the appellant but no evidence has been produced regarding the actual payment of the amount to him. P.W.1, P.W.2 and P.W.4 have stated that the money was not paid before them. Similarly, P.W.3 has stated that the amount was paid 2/3 days before the execution of pro note. This aspect has not been supported by any of respondent's witnesses.

9. In the light of what has been stated above, it is held that as the payment was not made, therefore, promissory note and the receipt executed by the appellant are without consideration.

10. Section 25 of the Contract Act deals with the agreements which are without consideration, it is reproduced for ready reference:-- "25. An agreement made without consideration is void unless---

(1) It is expressed in writing and registered under the law for the time being in force for the registration of documents and is made on account of natural love and affection between the parties standing in a near relation to each other, or unless;

(2) it is a promise to compensation, wholly or in part a person who has already voluntarily done something for the promisor, or something which the promisor was legally compellable to do, or unless;

(3) it is a promise made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits."

' The facts and circumstances of the present case are such that they are not covered by the exceptions mentioned therein.

'As the promissory note and receipt dated 2-9-1999 Exh.P.1/1 and Exh.P.1/2 are without consideration, therefore, they are void and cannot be enforced in Court of law. In this regard, respectfully reliance is placed upon Muhammad Ilyas v. Mst. Ijazan and another 1991 SCM R 1508; Muhammad Yagoob and others v. Naseer Hussain and others PLD 1995 Lah. 395 and Wali Muhammad v. Muhammad Ibrahim and others PLD 1989 Lah.

440.

12. The judgment of the learned trial Court suffers from nonconsidefhtion of material evidence.

Therefore, the findings on Issues Nos.1 and 2 are reversed. Under the circumstances, the respondent has failed to prove that he is entitled to a decree of Rs,2,00,000 as claimed by him in the suit.

13. In the light of what has been stated above, this appeal is accepted, judgment and decree dated 28-2-2002 passed by the learned Additional District Judge, Sahiwal is set aside, and the suit of the respondent is dismissed, however, the parties are left to bear their own costs.