' This single order shall decide the present revision petition (Civil Revision No,2559 of 2001) as well as the other connected revision petitions (bearing Nos.2560 of 2001, 2561 of 2001 and 2562 of 2001) as the common questions of law and facts are involved in all the revision petitions, they are between the same parties and have arisen out of the identical judgment dated 20-9-2001 passed by the learned Additional District Judge, Ferozewala.
2. Through the filing of these revision petitions, Saleem Ahmed, the petitioner/defendant, has called in question the judgment and decree dated 20-9-2001, whereby the learned Additional District Judge, Ftrozewala, dismissed the appeals, filed by the petitioner, and maintained the judgment and decree dated 31-10-1998, passed by the learned Civil Judge, through which he decreed four suits for recovery against the petitioner.
3. Facts, leading to the filing of these revision petitions are that the respondent instituted four different suits for recovery of distinct amounts against the petitioner before the learned Civil Judge, alleging therein that he sent different amounts through bank draft to the petitioner in the year 1987, and when the said amounts were demanded from the petitioner, he admitted the said amounts through the acknowledgement dated 30-6-1992 which was executed in the presence of the witnesses. According to the respondent, despite repeated demands, the said amounts were not paid, resultantly, he filed four different suits for recovery of various amounts. Said suits were contested by the petitioner, inter alia, pleading that the suits are barred by time and that he never executed the alleged acknowledgment, which is a forged one. The learned Civil Judge after framing the necessary issues, recorded the evidence of the parties and proceeded to decree all the suits in favour of the respondent vide judgment and decree dated 31-10-1998. Feeling aggrieved, the petitioner filed separate appeals before the higher forum, but the learned Appellate Court, although coming to the conclusion that Exh.P.2 acknowledgment has not been duly proved yet dismissed the said four appeals and IA maintained the judgment and decree passed by the learned Civil Judge, which according to him was rightly passed, vide identical judgment and decree dated 20-9-2001, hence, the present revision petitions.
4. Learned counsel for the petitioner has contended that even according to the respondent/plaintiff, the alleged transaction of borrowing the money took place in the year 1987, and the suits were filed in December, 1992, thus, the same were grossly barred by time. It has further been contended by the learned counsel that the learned Appellate Court after coming to the Conclusion that the acknowledgement of debt (Exh.P.2) has not been proved according to law, yet he proceeded to dismiss the appeals without any lawful justification, thus, it has been argued that the impugned judgments and decrees are not sustainable in law. Conversely, the learned counsel for the respondent has admitted that his case does not fall within the scope of section 19 of the Limitation Act, yet he while relying on section 25(3) of the Contract Act, has submitted that the said acknowledgement need not to be proved by the respondent. In the above back-drop, he submitted that the suits of the petitioner were within time and, thus, both the impugned judgments and decrees are not liable to be interfered by this Court in exercise of its rev visional jurisdiction.
5. Upon the examination of the plaints it is discernible that, admittedly, the respondent filed four suits for recovery regarding the alleged transactions took place in the year 1987, whereas the suits for recovery were filed on somewhere December, 1994, i,e,, after the lapse of more than seven years. The respondent being conscious of the weakness of his case, being out of time, relied upon the alleged acknowledgement dated 30-6-1992, which according to him was executed by the petitioner in the presence of the witnesses. The case of the respondent entirely hinges upon the acknowledgement dated 30-6-1992, the execution of which was subsequently denied by the petitioner in his written statements inter alia pleading the plea of limitation further asserting therein that the suits are barred by time. Not only this, but the respondent, while appearing as P.W.2 has also relied upon Exh.P.2, which is written by him and allegedly bears the signatures of the petitioner.
In the cross-examination, he has admitted that the two witnesses of this document were his tenant and that he now does not know about their whereabouts. Even from the statement of the respondent, it is clear that his "reliance is only upon the said acknowledgement.
6. Upon the examination of the judgment rendered by the learned Additional District Judge, Ferozewala, I find that there is a definite finding given by the learned lower Appellate Court about the said document i,e,, Exh.P.2, which according to the learned Appellate Court has not been proved by the respondent by producing the marginal witnesses. These findings of the learned lower Appellate Court are unexceptionable and in accordance with law. Admittedly, the said document was relied upon by the respondent and was the only basis for claiming different amounts, which was specifically denied by the petitioner. After this denial, the respondent in order to discharge the onus of issues was under obligation to prove through producing of cogent evidence that in fact Exh.P.2 was singed and executed by the petitioner in the presence of the witnesses and the best witnesses, who could have proved the execution of this document, were the marginal witnesses, who statedly, signed the document and according to the respondent, were his tenants. The respondent failed to prove this document by producing marginal witnesses as has rightly been observed by the learned lower Appellate Court.
7. There. Is yet another aspect of the case that there were definite findings given by the learned Additional District Judge against the respondent. Admittedly, the respondent has neither filed any appeals, challenging the said findings, operating against him nor he has filed the cross-objection.
As both the remedies available to the respondent, admittedly, were not availed by him, therefore, in the present revision petitions, filed by the petitioner, he cannot challenge the said findings against whom no revision petitions have even been filed by the petitioner. Thus, at this stage, the respondent is precluded from challenging the said findings of the learned Appellate Court in the present revision petitions.
8. I have examined both the impugned judgment and find that except the finding of the learned Additional District Judge regarding non-proving of Exh.P.2, both the judgments were passed in complete oblivion of the law on the subject and documents/evidence on record, thus, I am of the considered view that they are not sustainable in law. The learned Additional District Judge although initially proceeded in the right direction, while holding that Exh.P.2 was not proved in accordance with law by not producing evidence, yet in the latter portion of the judgment fell into legal error while dismissing the appeals of the petitioner completely forgetting that in view of non- proving of Exh.P.2 even according to the stance of the respondent, the suits were barred by time.
Once the learned Additional District Judge came to the conclusion that Exh.P.2 does not exist, there was no material left before the learned Appellate Court to decree the suits, more so when according to the plaint, the transactions were allegedly undertaken in the year 1987, while the suits were filed in the year 1994. In view of such contradictory findings, I am not inclined to maintain both the judgments and decrees which are highly exceptionable and call for interference by this Court in exercise of its revisional jurisdiction.
9. The upshot of the above discussion is that all the revision petitions are accepted and both the impugned judgments and decrees dated 20-9-2001 and 31-10-1998 passed by the learned Additional District Judge and the learned Civil Judge, respectively are hereby set aside with no order as to costs.