S. M. ZAHIR vs Pirzada Syed FAZAL ALI AJMERI

ORDER

1. ANWARUL HAQ, J.-This petition for special leave to appeal has arisen out of a suit filed against the petitioner by the respondent Pirzada Syed Fazal A.I Ajmeri for the recovery of Rs.2,000 on the basis of a pronote and the accompanying receipt, both of which were said to have been executed on the 26th of February 1966. The suit was tried by the learned Judge of the Small Cause Court at Lahore and decreed with costs on the 25th of July 1970. 7-he petitioner's revision petition was dismissed by a learned Single .Fudge of the Lahore High Court on the 25th of June 1973.

2. The facts alleged by the plaintiff-respondent were that the defendant, who was closely related to him, was in need of money and accordingly, the plaintiff advanced him a loan of Rs. 2,000. The defendant executed the pronote (Exh. P.1) and the receipt (Exh. P. 2) which was attested by Muhammad Ahmad (P. W. 1) and Abdus Samad Qureshi (Q. W. 1). At the trial, the plaintiff elaborated his claim by saying that the money had in fact been paid to the petitioner by means of a cheque issued, on the 8th of January 1966, and that this cheque had been encashed by the defendant. Evidence was led to prove the cheque (Exb. P. 3) and a certificate of its payment (Exh. P.

3. 4). The present petitioner denied all these allegations and asserted that he had never taken any loan from the plaintiff and that he had not executed the pronote or the receipt. He produced the marginal witness Abdus Samad Quresbi in defence, and this gentleman asserted that he bad never signed these documents, nor were they executed by the defen--dant in his presence.

4. However, both the Courts below did not believe the evidence of the plaintiff-respondent, and rejected the defence evidence as being unworthy of credit. They have taken the view that the cheque issued by the plaintiff had been cashed by the defendant, and it was for this reason that he subsequently executed the necessary receipt as well as the pronote. The trial Court has observed that although no handwriting expert was produced by the plaintiff, yet a visual comparison of the sample writing of the defendant showed that the pronote and the receipt had been executed and signed by him.

5. Leave to appeal is sought on the ground that the plaintiff should not have been allowed by the trial Court to lead evidence as to the payment of the money by cheque, as he had not taken any such position in the plaint, and he could not be permitted to traverse beyond the plaint in view of therestrictions contained in rule 7 of Order VI of C. P. C. It is next submitted that the pronote and the receipt having become disputed documents, the trial Court should have summoned expert evidence to prove the identity of the executants, and should not have relied on its own visual observation. It is finally contended that the Courts below have erred in rejecting the defence evidence.

6. As regards the first contention, we find that rule 7 of Order VI of the C. P. C contemplates that "no pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same". Now in the present case, we do not see any inconsistency in the claim set up by the plaintiff-respondent in the plaint, and in his evidence before the Court. In the plaint he had not described the mode of payment of the sum in suit, but he had clearly asserted that he had advanced the loan in question to the defendant. In his evidence he merely established this assertion by stating that the money had been paid by cheque. The cheque, and the certificate of its payment, were in the nature of evidence to support the claim which bad already been set up in the suit. This is, therefore, not a case falling within the mischief of rule 7 of Order VI of the Code of Civil Procedure.

7. As to the pronote and the receipt having become disputed documents, it is true that it would have been preferable for the learned trial Judge to examine expert evidence in this behalf, but there is no rule of law that this must be done in every case. The learned Judge has observed that the resemblance between the sample writing of the petitioner and the writing embodied in the pronote and the receipt was so visible that he did not feel it necessary to call for expert examination of the documents. We cannot hold that the procedure adopted by him was contrary to law.

8. As regards the last contention, it is clear that it was open to the trial Court to form its own assessm ent of the veracity of the witnesses produced by both sides. The opinion formed by the trial Court, as to the compara--tive veracity of the witnesses produced by both sides, is entitled to respect. The Courts below have given good reason for rejecting the defence evidence.

9. It thus appears to us that the suit was rightly decreed, and the High Court was justified in refusing to interfere by way of the revision. The present petition also fails and is hereby dismissed.