NOOR MUHAMMAD Versus MUKAMEEN SHAH

ATTAULLAH KHAN, J.--- This regular appeal bearing No.11 of 2006 i5 directed against the Judgment and Decree dated 28-2-2006, passed by learned Senior Civil Judge, Lakki Marwat, vide which the suit of the respondent/plaintiff was decreed in his favour.

2. The brief facts of the case are that the respondent/plaintiff filed a suit for recovery of Rs.53,50,000 against the appellant/defendant on the basis of agreement dated 8-7-1998. According to the respondent/plaintiff the said amount was paid by the respondent/plaintiff to the appellant/defendant for a joint business. It is alleged in the plaint that the appellant/defendant did not start any business and utilized the said amount for his personal use. He was asked to pay the said amount back. It is pertinent to note that the amount paid by respondent/plaintiff is Rs.53,50,000 while he has claimed Rs.2,00,000 as damages.

3. The suit was contested by the appellant/defendant by filing his written statement which gave rise to the following issues:--

1. Whether plaintiff has got a cause of action?

2. Whether plaintiff is estopped to sue?

3. Whether suit is mala fide?

4. Whether Iqrarnama dated 8-7-1998 was actually entered into and executed by the parties?

5. Whether defendant owes Rs.53,50,000 to the plaintiff?

6. Relief.

4. After recording evidence and hearing arguments, the learned trial Judge, decreed the suit in favour of the plaintiff/respondent on 28-2-2006.

5. The said Judgment and Decree has been assailed in the appeal in hand.

6. Learned counsel for both the parties heard and record on file perused, in the light of which our discussion is as under.

7. The main arguments advanced by learned counsel for the appellant is that the deed allegedly executed between the parties is forged and bogus. He based this plea on the ground that it was executed at Lakki Marwat though both the parties resided at Peshawar at the relevant time. It is also argued that both the parties remained busy in litigation against each other in rent matter at Peshawar in 1994 and consequently as a result of Court proceedings in 1999, the respondent was ejected by the appellant and, therefore, the plea of learned counsel for the appellant is that due to these strained relation it was not possible for the parties to enter into business deal. He further argued that the marginal witnesses are related to the plaintiff/respondent and also scribe of the deed has not been produced in the Court.

8. On the other hand, learned counsel for the respondent refuted the arguments of learned counsel for the appellant by advancing the arguments that the agreement deed has been proved by the respondent through cogent evidence and, therefore, he was entitled to the decree.

9. The agreement deed is available on file as Exh.P.W.1/1. This deed has been signed by both the parties. Taj Muhammad and Zaru Jan are marginal witnesses. In order to prove the execution the plaintiff/respondent has produced Taj Muhammad and Zaru Jan P.W.2 and P.W.3 and both of them have confirmed the contents of the agreement deed. According to them the amount was paid in their presence to the appellant. In the cross-examination nothing has been brought out by opposite party. In our opinion the respondent has succeeded to prove his case on the strength of Exh.P.W.1/1. There is no proof on file brought out by the defendant that the marginal witnesses though related are interested and inimical toward him. Unless this factum is proved, the evidence cannot be brushed aside. As far as denial of defendant/appellant is concerned he was required to apply to the trial Court for comparison of his signature through hand-writing expert but he has failed to avail that opportunity. Even otherwise, the Courts are competent to compare the signature and it is not necessary to examine the signature through handwriting expert and this is also not the requirement of law. In case attesting witnesses who confirm the contents of a document then there remains no need for examination of scribe. The cogent evidence has been produced by the respondent, in the Court to prove Exh.P.W.1/1. All the requirements of law (Qanun-e-Shahadat) have been fulfilled and it is proved that the respondent has advanced Rs.53,50,000 to the appellant. As far as the strained relations between the parties are concerned, it is an admitted fact that the litigation in respect of rented house has taken place between the parties but in our opinion it cannot debar the parties from entering into deals or business subsequently. The arguments that the parties resided at the relevant time at Peshawar, therefore, instead of Lakki the agreement should have been scribed in Peshawar. This is a weak contention because one of the party resides at Lakki and thus it could have been scribed at Lakki or at Peshawar. There is no bar in this regard. It is the convenience of the parties to execute a document in place which is convenient to them. It is settled principle of law that the scribe of the document who merely writes a deed does not become a necessary witness if the document executed between the parties is proved through testimony of marginal witnesses.

10. In view of our above discussion is (sic) that the appellant has failed to point out any illegality or non-reading of evidence requiring interference, therefore, we dismissed the instant appeal being meritless.

H.B.T./62/P Appeal dismissed.