GHULAM ABBAS Versus Sh. GUL MUHAMMAD

A suit for recovery under the summary procedure of Order XXXVII, C.P.C. was instituted by the respondent for a sum of Rs.79,700. In that the appellant-defendant was allowed leave to defend and contest which was then tried. The suit was eventually decreed by the learned Additional District judge, Shorkot, District Jhang on 1-11-2001. This is appeal there against by the defendant/judgment-debtor.

2. The learned counsel for the parties-have been heard and record of the trial Court has been perused with their assistance.

3. The suit was based on two cheques Exhs.P.1 and P.2 which had been issued by the appellant but were not honoured by the Bank. The defence of the appellant-defendant was that the amount had been paid by him and the claim based on the cheques was false and frivolous who had not returned the cheques to him. In order to succeed in their respective stance, the parties had to prove Issues Nos. 1 and 4 which reads as under:--

"(1) Whether the defendant purchased pesticides amounting to Rs.79,700 from the plaintiff and gave Cheques Nos.11645268 and No.11645269 of National Bank of Pakistan Garh Maharaja which were subsequently dishonoured, as such the plaintiff is entitled to recover this amount from the defendant? OPP

(4) Whether the defendant had paid the entire amount to the plaintiff and the demand made by the plaintiff from the defendant is illegal? OPD"

The respondent/plaintiff produced Tahir Iqbal P.W.1 an Officer of National Bank Garh Maharaja. He appeared himself as P.W.2 and produced Muhammad Iqbal P.W.3. From the appellant-defendant side Ghulam Abbas appeared as D.W.1 whereas he produced Sheikh Mubashar Abbas D.W.2 and Sheikh Ihsan Elahi as D.W.3. Since the issuance of cheques was not in dispute, the-material controversy was in regard to the plea of the appellant-defendant as to return of the disputed amount. It was stated by Ghulam Abbas D.W.1 that he had paid back a sum of Rs.42,000 through Sh. Mubashar Abbas, D.W.2, and another sum of Rs.5,500 through Sheikh Ihsan Elahi D.W.3. His version is supported by Mubashar Abbas D.W.2 who stated that he had paid a sum of Rs.42,000 to the respondent-plaintiff and receipt Exh.D.1 was in his hand. Sh. Ihsan Elahi D.W.3 deposed about payment of Rs.5,500 to the respondent-plaintiff on behalf of the appellant-defendant. It was stated by him that receipt Exh.D.2 was in his hand and bear his signature. In the context of such evidence on Issue No.4 which prima facie supported the version of the appellant-defendant, reference to the deposition of Gul Muhammad respondent-plaintiff, assumes relevance and importance. In the cross-examination it was admitted by him that:--

Such a statement made by him conforms with the stance of the appellant defendant and the two witnesses produced by him. There thus, remains no doubt that a sum of Rs.42,000 and Rs.5,500 was received by the plaintiff-respondent. Response of the respondent/plaintiff to the questions put in this respect to him was straight and natural, it was enough to prove receipt of said payment but he tried to add a proviso by way of explanation; that the same was on account of some other outstanding amount. It was hardly believable version as the cheques had been issued in the year 1996, the payment of Rs.47,500 was received in the year 1997 whereas the suit was filed by him in 1999 There was no mention or reference to any such outstanding amount anywhere except the one in dispute. His explanation is thus, not worthy of credence. To that extent, the finding of the learned trial Court is not consistent with the evidence on the record which is liable to be reversed. In view of such state of evidence, the decree granted by the trial Court for whole of the suit amount is not sustainable and is liable to be modified, thus, from the decretal amount of Rs.79,700 a sum of Rs.47,500 which is proved to have been received by the respondent-plaintiff shall be excluded and decree to the extent of Rs.32,200 will remain intact in favour of the respondent-plaintiff.

The appeal is accepted partially by modifying the decree in the above terms and is dismissed qua the rest of the amount. No order as to costs.

M.B.A./G-70/L Appeal partially accepted