' On 9-9-2000, the respondent filed a suit against the appellant. In the plaint it was stated that the appellant received a sum of Rs,100,000 by way of loan and executed a pronote on 14-9-1998. A receipt was also executed in presence of the witnesses. The amount was demanded but not paid and consequently, the suit was filed for recovery of Rs,100,000. The appellant was served in the manner prescribed. He put in appearance and applied for leave to appear and to defend. This application was allowed on 18-10-2000 subject to furnishing of security. The condition was complied with and the written statement was filed. In the written statement it was stated that the pronote is without consideration and that the pronote has been prepared by fraud. Following issues were framed by the learned trial Court:--
(1) Whether the defendant obtained a loan of Rs, One lac from the plaintiff and executed a pro note and receipt dated 14-9-1999 in this respect? OPP
(2) Whether the defendant is entitled to recover special costs under section 35-A, C.P.C? If so, to what extent? OPD
(3) Relief.
Evidence of the parties was recorded. Vide judgment dated 10-4-2001, issue No,1 was found in favour of the respondent, while issue No,2 was answered in the negative. The suit was decreed.
2. Learned counsel for the respondent has put in appearance. The records are available. Both the learned counsel are prepared with their arguments. This case is accordingly being decided as a Pakka case.
3. Learned counsel for the appellant contends that scribe had stated that no amount was paid in his presence, while the respondent when suggested refused to take oath on holy Qur'an. According to the learned counsel, these two circumstances go to show that the pronote was without consideration. Learned counsel for the respondent, on the other hand, contends that the appellant when confronted with the pronote admitted without any demur that he executed the said document as well as the receipt. According to him, there is presumption under the law that such a document has been executed for consideration and the appellant failed to rebut the same. Further contends that apart from the said admission, execution of the document and payment of consideration was duly proved. Regarding refusal to take special oath, the content on is that no adverse inference is to be drawn.
4. I have gone through the trial Court records with the assistance of the learned counsel for the parties. The pronote is Exh.P-1, while the receipt is Exh.P-2. Ashiq Hussain P.W.1 is the scribe. He stated that he had written the document and read over the same to the parties and the appellant signed the same in the presence of Witnesses. He, however, stated that in his presence, no money changed hands. Now P.W.3 Sarfraz and P.W.4 Muhammad Tariq are the attesting witnesses of the receipt Exh.P-2. Both of them have stated that the document was executed by the appellant after having received the amount of Rs,100,000 from the respondent in the presence of the said witnesses at his shop. Nothing has been brought out in the cross-examination of the said witnesses.
5. To my mind the execution of the document stands admitted, while payment of consideration has been proved by the said two witnesses. Now in the witness box, the appellant while admitting that Exh.P-1 was executed by him, proceeded to state that it was promised by the respondent that he would pay him the amount later on and he should accompany him to his house but the amount was not paid. In the first instance, this plea was not taken in the written statement and in the second, the plea is prima facie false. The reason is that the pronote has admittedly been executed on 14-9-1998 and remained in custody of the respondent, whereas the suit was filed on 9-9-2000, i,e, after about a year. There is no evidence that the respondent ever demanded back the said document.
6. So far as the said second contention is concerned, it is true that while the respondent was in the witness box as PW-2, it was suggested to him towards the fag end of his cross-examination if he is ready to take oath on Holy Qur'an and he refused. Now by virtue of section 12 of the Oaths Act, 1873, in such an eventuality, the Court is only required to record as part of the proceedings the nature of the oath or affirmation proposed and that it was refused and in case some reasons are assigned, the said reasons are also to be recorded. However, there is nothing in the said law which enables the Court to compulsorily draw an inference against a person refusing to take oath. I may refer here a DB judgment of this Court in the case of Jumma Khan v. Allah Bakhsh (AIR 1932 Lahore 25) and some observations of Goldstream, J., appearing at page 26 of the report are being reproduced as under:-- ' A party may have perfectly true case and yet for peculiar reasons be unwilling to bind his conscience by a particular form of oath. The refusal does not prove falsity of the respondent's claim."
7. In the present case, all available evidence has been produced. Execution stands admitted. To my mind, no adverse inference can be drawn from the refusal of the respondent to take special oath as suggested by the appellant.
8. No other point is urged. This RFA is without any force and is dismissed, leaving the parties to bear their own costs.
9. The Trial Court's record be immediately remitted back.