KHALID SAEED Versus HAMEEDUD DIN GHORI

On 14-2-1988, the respondent filed a suit against the appellant for recovery of Rs.55,000. It was stated in the plaint that the parties are known to each other and have cordial relations. The appellant deals in the business of sale and purchase of cars. The respondent is proprietor of Shibili Petroleum. On 2-4-1985 appellant approached the respondent and told him that a car is available at a cheep price but he has no money and request for a loan of Rs.55,000. The request was acceded and the amount was paid. The respondent executed receipt and pro note to pay back the suit amount. However, upon demand the amount was not paid back and accordingly a decree was prayed for.

2. The appellant was duly served. He put in appearance and sought leave to defend the suit. I may note here that in that application, it was stated that he has not only paid back the principal amount recorded in the pro note but also a profit of Rs.5,000 to the respondent and further that the respondent owe him Rs.25,000 and that amount was so paid by way of cheque. This application was filed on 23-2-1988. The case came up before the learned trial Court on 12-3-1988 when it recorded that the application is accepted subject to furnishing of surety. Written statement was filed on 26-3-1988. In this written statement, in response to para. No.4 of the plaint wherein the respondent had alleged the request of the appellant for loan, advancement of amount and execution of pro note and receipt, appellant stated that the execution of pro note and the receipt of consideration is admitted. He further took up the plea that he had paid back amount of loan along with Rs.5,000 as profit and an additional. amount of Rs.25,000 vide a cheque dated 31-5-1986 and that this cheque was got encashed by the respondent from U.B.L. D.G. Khan. He also claimed a set off Rs.25,000. No objection whatsoever to the existence, validity and legality of the pro note was raised in the R.F.A. Learned trial Court framed the following issues:--

Issues

(1) Whether the defendant has paid the amount due on account of pro note in dispute? OPD

(2) Whether the defendant has advanced an amount of Rs.25,000 to the plaintiff? If so, what effect? OPD

(3) Whether the plaintiff is entitled to recover Rs.55,000 from the defendant on account of pro note executed by defendant? OPP

(4) Relief.

Evidence of the parties were recorded. Vide judgment and decree dated 4-5-1988, the learned trial Court found all the issues in favour of the respondent and decreed the suit of the respondent and dismissed the set off of the appellant.

3. Learned counsel for the appellant contended that his client did not at all admit the two cheques, on the basis whereof, the learned trial Court has recorded finding that cheque for Rs.85,000 was paid by the appellant to liquidate the said liability. The learned counsel then vehemently contends that the pro note was neither produced nor proved in accordance with law and as such, valid pro note having not been proved even if liability was admitted by the appellant, no decree could have been passed in favour of the respondent. He has relied upon case of Mirza Arif Baig v. Mubarik Ali PLD 1992 Lah. 366; Sheikhupura Central Cooperative Bank Ltd. through its Honorary Secretary v. Ch. Tawakkal Ullah and another PLD 1977 Lah. 763; Firm Sri Chand Sheo Parshad v. Lajjia Ram AIR 1939 Lah. 31 and Sohan Lal Nihal Chand v. Raghu Nath Singh and others AIR 1934 Lah. 606. He then argued that since the said two cheques were not pleaded, no evidence could have been allowed to have been produced. Relied upon Abdul Haque and others v. Shaukat Ali and 2 others 2003 SCMR 74 and Binyaineen and 3 others v. Chaudhry Hakim and another 1996 SCMR 336.

4. Learned counsel for the respondent on the other hand contends that no objection whatsoever was raised to the validity of the pro note. He referred to the memo. of first appeal, which is also silent in this behalf. Learned counsel with reference to the evidence on record contends that it was proved that the amount of the two cheques was received by the appellant and there is no evidence in rebuttal of the said proof. As to the last contention, he states that no additional pleadings were called for and his client was' not called to file reply to the application, which was allowed by the learned trial Court and as such said rulings relied upon by the learned counsel would not be attracted.

5. I have gone through the record of the learned trial Court. I have already reproduced above material contents of the plaint and application for leave to defend and the written statement filed by the appellant. Now I may note here the relevant portion of para.4 of the plaint and then reply by the respondent.

Urdu Lines Page 1355-1356

Para No.4 of the written statement.

He appeared as D.W.2 and stated:--

The respondent appeared as P.W.2 and made statement in line with his plaint including the facts that pro note was executed. He was cross-examined and no suggestion was given that there was anything wrong with the pro note. It will thus, be seen that throughout the trial and even in this R.F.A., no objection as to validity of the pro note was raised: It is being raised today when this R.F.A. is being argued. Now coming to the said judgments having been relied upon by the learned counsel for the appellant. In the case of Mirza Arif Baig, the defendant had denied having executed the promissory note and to have received any money under the said document. The decision of the trial Court was that payment of consideration has not been proved and the signatures are forged. The arguments of the learned counsel was noted with reference to the judgment being relied upon by the learned counsel. It was held that since adhesive stamps have not been cancelled, it is rendered inadmissible in evidence and the decree cannot be passed even if liability is admitted. The facts of the present case are wholly different.

6. In the case of Sheikhupura Central Cooperative Bank ,Ltd. dispute was that the plaintiff filed a suit to recover amount of Fixed Deposit with the Bank. Plea taken was that the father of the said plaintiff owes money to the Bank and since he was beneficial owner of the amount of the said F.D.R. the Bank has lawfully adjusted the same to liquidate the loan. It was denied by the plaintiffs that their father had taken the amount of loan from the Bank. To prove the plea, one of the documents produced was a pro note whereon one of the stamps had not been cancelled. The document was objected to in earnest and was not admitted in evidence by the learned trial Court. Their Lordship allowed appeal of the Bank against the decree passed in favour of the plaintiff. However, while parting with the said documents, the plea of said bank regarding the said pro note was considered and it was held that said pro note is inadmissible. In the case of Firm Sri Chand Sheo Parshad, the objection was taken in the trial Court at the time, it was produced in the Court at the time of framing of the issue. The precise plea was that original produced in Court is different from copy accompanying the same and that stamp had been cancelled later on. The plea was accordingly decided with the observation that pro note was inadmissible in evidence for want of cancellation of the stamp even if the defendant admitted liability the suit cannot be decreed. In the case of Sohan Lal Nihal Chand, the objection was taken in the written statement that the stamps had not been cancelled and the document is inadmissible. I may note here that in the last mentioned two cases, claim of the plaintiff was for interest on loan.

7. It will thus, be noted that in all the said cases, the objections were taken in right earnest and the pleading necessitated the production and proof of pro note. In the present case, in my humble opinion such occasion never arose.

8. Now before I proceed further, I may note here that onus of Issues Nos.1 and 2 was upon the appellant while that of Issue No.3 was upon the respondent. The respondent's evidence was recorded on 5-4-1988. Hameed Javed, Manager, U.B.L. D.W.1 produced record of the cheque for Rs.85,000, copy Exh.D.1. The original cheque was seen by the Court and returned. The witness stated that the respondent has received the amount of cheque from the Bank. He was not cross-examined. It is but obvious that receipt of said amount stood admitted. Now appellant appeared as D.W.2 on the same day. I have already reproduced above some portions of his statement. He proceeded to state that he had executed pro note and he obtained the amount to purchase a car but he returned the amount after selling the car. This amount is Rs.85,000. This comprises of repayment of Rs.55,000, Rs.5,000 profit and Rs..25,000 had been demanded by the respondent and which were paid to him. In his cross-examination, he denied that prior to handing over the said cheques, he had received some amount from the respondent by means of cheques, drawn on U.B.L. Quaid-e-Azam Road Branch, D.G. Khan. He denied having received two cheques of Rs.50,000 each. He denied that Rs.85,000 was settlement of some other liability and that amount of pro note is due. He also denied having received the pro note from the respondent. On 19-4-1988, Amjad Saeed, Manager, U.B.L. Quaid-e-Azam Road, appeared as P.W.1. He produced the record. He stated that both the parties are known to him. According to him, cheque Exh.P. 1 was issued by the respondent and pertains to his account. It is in the sum of Rs.50,000 and this amount was received by the appellant after signing the backside of the cheque and that these cheques are of the respondent. Cheque Exh.P.2 was also issued by the respondent and the amount was received in the same manner by the appellant. The original cheques were examined by the learned trial Court and the copies were exhibited. In the cross-examination, he stated that both the cheques are drawn self. He stated that whoever come to receive the amount of bearer cheque, his signatures are obtained. Not a single suggestion was given or question was put that the amounts of these two cheques were not received by the appellant as stated by the said witness. The respondent appeared as P.W.2 on the same date and made a statement in accordance with his plaint. He further stated that the appellant took two cheques of Rs.50,000 each and received amount from the bank and returned only Rs.85,000 through cheque while Rs.15,000 is still due. The amount of pro note i.e. Rs.55,000 is still due. In cross-examinations, no specific question was put or suggestion was given that said cheques were not handed over to the appellant and that he had not received the amount of the same.

9. Now the cheque Exh.P.1 is dated 12-3-1986 while Exh.P.2 dated 25-3-1986 and the cheque issued by the respondent for Rs.85,000 Exh.D.1 is dated 31-5-1986. Having thus read the entire evidence available and the attending circumstances, I do agree with the conclusion arrived at by the learned trial Court that the cheque Exh.D.1, was given to liquidate the amount received by the respondent vide cheque Exh.P.1 and Exh.P.2 and that suit amount was never repaid.

10. Now coming to the said last contention of the learned counsel for the appellant, it will be noted that the leave to defend was on the plea of repayment. The application was allowed summarily without seeking reply from the respondent. Thereafter, written statement was filed containing said plea of repayment. Now after recording the evidence of the appellant on 5-4-1988, the case was adjourned for recording the evidence of the respondent on 10-4-1988. I found an application at page 75 of the record of the trial Court and to the effect that the respondent had brought the Bank Manager as a witness to prove the said two cheques but the learned counsel for the opposite party objected that he has no notice of the said documents and the evidence was not recorded. It was then stated that since he intended to bring along with witness, he had not filed an application for summoning the witness. However, the name of the witness is included in the list and that the production of evidence is necessary in view of the evidence led by the appellant. The permission was sought to produce the said witness along with the said record of the said cheque. This application was taken up on the same date and was allowed subject to payment of Rs.100 as costs and the case was adjourned to 19-4-1988. I also find that list was filed containing particulars of the said witness and the cheque. I further find that no objection was taken to the recording of the said evidence and the admissibility of the document produced by the said witness. In the peculiar circumstances of the case, it cannot be said that the appellant had been prejudiced in any manner.

11. For all that has been discussed above, this R.F.A. is without any force and is accordingly dismissed. Parties are left to bear their own costs.

H.B.T./K-101/L Appeal dismissed.

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