' JAWWAD S. KHAWAJA, J.--- Through this regular first appeal Tariq Saeed Butt (appellant/plaintiff) impugns the judgment and decree dated 10-11-2001 passed by the learned trial Court whereby a suit filed by the appellant under Order XXXVII, C.P.C. For recovery of Rs,16,54,000 on the basis of promissory note/receipt dated 1-3-2000 has been dismissed.
2. It was the case of the appellant/plaintiff that the three respondents/defendants, who are brothers inter se, had borrowed the aforesaid amount and had, therefore, executed the promissory note/receipt to secure repayment of the same to the appellant. The respondents/defendants sought have to appear and defend which was allowed unconditionally. The respondents/defendants thereafter filed their written statement in which they denied having executed the promissory note/receipt. They also denied having received the disputed amount.
Based on the pleadings, the learned trial Court framed as many as five issues including that of relief. However, before us learned counsel for the parties confined their arguments to issue No,3.
This issue was framed in the following terms:- "Whether the defendants borrowed a loan of Rs,16,54,000 from the plaintiff and executed a promissory note and receipt dated 1-3-2000? OPP"
3. The plaintiff appeared as P.W.1 in support of his own case and also produced Khan Muhammad (P.W.2) and Saleem Ahmed (P.W.3) who are the marginal witnesses to the receipt/pronote. The appellant/plaintiff also produced the receipt/pronote as Exh.P.1. At this point, it may be noted that the receipt and the pronote are printed on one paper. The text of the two instruments, in which blanks have been filled in, appear side by side on the same sheet of paper. The purported signatures of the respondents/defendants and of the two marginal witnesses, named above, appear under the receipt and not under the pronote.
4. The three respondents/defendants appeared as D.W.3, D.W.4 and D.W.5 respectively in support of their defence. Additionally, they summoned Muzaffar Hussain, Officer Grade-III, National Bank of Pakistan as D.W.1 and M. Abbas Mirza, Advocate, as D.W.2. The respondents/defendants also produced Exhs.D.1 to D.12.
5. We have heard learned counsel for both parties at length and have also examined the record with their assistance.
6. The case of the appellant, as set out in the plaint, is that the three defendants approached him on 1-3-2000 and sought a sum of Rs,16,54,000 by way of loan. The plaint also avers that the aforesaid amount was advanced to the respondents/defendants by the appellant and the respondents duly executed the receipt and promissory note referred to above. The testimony of the appellant as P.W.1, however, is materially different from the aforesaid contents of his plaint. It is significant to note that the appellant did not, at any point, testify that the respondents Nos.2 and 3, namely, Hameed Ahmed Khan and Muhammad Ali were present when the aforesaid sum was advanced by him by way of loan. Equally important is his testimony that it was only the respondent/defendant No,1, namely, Habib Ahmed Khan who had executed the promissory note. In his cross-examination, the appellant expressly deposed that apart from Khan Muhammad (P.W.2)
Saleem Ahmed (P.W.3), who are the marginal witnesses to the receipt, and Muhammad Saeed and Syed Ijaz Haider no one else was present when Exh.P.1 was filled in and executed by respondent/defendant No,l. The testimony of the appellant/plaintiff, therefore, is not consistent with the contents of the plaint and does not fix any liability on respondents/defendants Nos.2 and 3.
7. The two marginal witnesses, however, have deposed that all three respondents/defendants were present and executed Exh.P.1 in their presence. Learned counsel for the appellant was asked to explain the material departure made from the contents of the plaint, in the appellant's testimony and also to explain the significant discrepancy between the evidence of the appellant on the one hand and P.W.2 and P.W.3 on the other. He was unable to give any satisfactory response.
8. He did attempt to argue that the appellant had clearly deposed that Exh.P.1 had been executed by respondent/defendant No,1 and according to him, it is possible that the respondents/defendants Nos.2 and 3 may have executed Exh.P.1 at some subsequent point in time.
This explanation is entirely conjectural and is not borne out from the record. In any event, it does not explain the discrepancy note above in the testimony of the appellant and his two witnesses who appeared in support of the appellant's case.
9. Another striking feature of the evidence on record is that even, according to the appellant, the respondent/defendant No,1 had borrowed a sum of Rs,40,000 from the appellant in December, 1999 but had not returned the same to him. Despite default in payment of the said amount of Rs,40,000 the appellant proceeded to advance a substantial amount of Rs,16,54,000 to the respondent No,1.
The learned trial Court was justified in drawing the inference from this circumstance that the E appellant was not a credible witness because it did not stand to reason that an amount would be advanced by way of loan to a borrower who has failed to repay the earlier smaller loan. We are also of the same view as no satisfactory argument has been advanced by learned counsel for the appellant to justify a different conclusion.
10. In addition to the above, the learned trial Court had noted that Jan Muhammad (P.W.2) was a driver with the National Bank while Saleem Ahmed was a Chowkidar. Both these witnesses, who purportedly witnessed the execution of Exh.P.1, were subordinates of the appellant who was a Grade-II Officer in the National Bank. The learned trial Court disbelieved the testimony of P.W.2 and P.W.3 for the reason that they might have been influenced by the appellant. According to learned counsel for the appellant, the mere fact that P.W.2 and P.W.3 were subordinates of appellant, could not be sufficient reason for disbelieving them. This contention may, as a general rule, be accepted.
We, however, find that in the circumstances of the present case, P.W.2 and P.W.3 would not have been the most natural witnesses to the disputed transaction.
11. At this juncture, we need to note that the appellant was a serving bank officer while the respondent/defendant No,1 was a former colleague of his. The transaction in question and the execution of Exh.P.1, according to the appellant, took place within the premises of the National Bank.
In these circumstances, in any bona fide transaction the other offices, Managers or even the Cashiers in the bank's premises might have been the more natural and readily available witnesses.
12. It does appear to us that the driver and the Chowkidar of the bank were influenced by the appellant to sign Exh.P.1 as marginal witnesses. This opinion is fortified by the fact that the appellant himself did not claim having advanced the loan to respondents Nos.2 and 3 and he also did not assert that the said two respondents were present when the disputed transaction took place. P.W.2 and P.W.3, however, have gone beyond the testimony of the appellant by deposing that the two respondents Nos.2 and 3 were also present at the time. Keeping in view these circumstances, we do not find the testimony of P.W.2 and P.W.3 to be credible.
13. It was next contended by learned counsel for the appellant that the learned trial Court had misdirected itself by holding that the promissory note had not, in fact, been signed by the respondents or witnessed by the two marginal witnesses. According to him, the receipt and the promissory note were one document having been printed on a single sheet of paper. He was not in a position to deny that the alleged signatures of the respondents/defendants and of the marginal witnesses appeared at the foot of the receipt only while there were no signatures under the promissory note. He, however, stated that the omission of the signatures under the promissory note had no material bearing on the case because both instruments being one document had also been exhibited as a single document, Exh.P.1, and this document had been executed by the respondents and witnessed by the two marginal witnesses P.W.2 and P.W.3 respectively.
14. We have examined Exh.P.1 and are unable to agree with the argument advanced by learned counsel for the appellant. The pronote does not bear the signatures of the respondents/defendants. It is true that both instruments i,e, receipt and the pronote are on one sheet of paper. However, in order to burden the respondents/defendants with liability under the promissory note, it was necessary for their signatures to appear at the foot of the promissory note.
These signatures, as noted above, only appeared under the receipt and can, therefore, at best, be treated as acknowledgement that the amount of Rs,16,54,000 was received by the respondents/defendants. The receipt cannot be equated with the liabilities under the pronote without corresponding signatures of the respondents/ defendants under the pronote. In any event, since both instruments are independent documents, there should, at least, have been two sets of signatures to prove execution of both documents.
15. We have considered the fact that the revenue stamps appearing below the promissory note bear the alleged signatures of the respondents/ defendants. These signatures, however, have not been identified or referred to by P.W.2 and P.W.3. According to these witnesses, the only signatures of the respondents/defendants on Exh.P.1 are those which have been attested by them. These attested signatures, as noted above, appear at the foot of the receipt. The signatures on the revenue stamps, affixed under the promissory note, have not been proved by any of the witnesses examined by the appellant/plaintiff. The alleged signatures of the respondents/defendants on the revenue stamps, therefore, cannot be accepted as proving the execution of the pronote in dispute.
16. Furthermore, the P.Ws.2 and 3 have deposed that it was the promissory note which was executed by the respondents/defendants and witnessed by them. This testimony is also contrary to what appears on the face of Exh.P.1 as noted above.
17. The evidence produced by the appellant/plaintiff both oral and documentary, as discussed above, can be briefly summed up. The promissory note in question is not executed by the three defendants. The testimony of the attesting witnesses (P.W.2 and P.W.3) is contrary to the contents of Exh.P.1 and also contradicts the evidence of the appellant/ plaintiff in material particulars. These circumstances are in themselves, sufficient to hold that the appellant/plaintiff has failed to prove issue No,3.
18. However, in addition to the above, there are two aspects of the case which further detract from the veracity of the case set up by the appellants/plaintiff. Firstly, we note that the appellant/plaintiff denied having received any cheque from Habib Ahmed Khan (respondent/ defendant). However, Muzaffar Hussain, Officer Grade-III, National Bank, who appeared as D.W.1, referred to a bearer cheque for an amount of Rs,1,45,000 drawn in favour of the appellant/plaintiff and has deposed from the record that the amount of the cheque was received by Gul Zarin and Tariq Butt (appellant/plaintiff), although he is not sure as to who among Gul Zarin and the appellant actually received the amount. The cheque, referred to by D.W.1, is not exhibited on record. However, from the evidence of D.W.1, it is clear that it was made out in the name of the appellant. We can also infer that at the time of its encashment it bore the signatures of Gul Zarin and the appellant. The testimony of D.W.1 is credible being based on the bank's record. It shows that the appellant was less than truthful when he testified that he had not received any cheque from respondents/defendant No,l.
19. Secondly, learned counsel for the respondents/defendants referred to Exhibits D.1 to D.12 including a legal notice dated 4-7-2000 (Exh.D.7) issued by Ch. Sharafat Ali Shad, Advocate, to the respondents/defendants on behalf of the appellant/plaintiff. In the said notice, no mention has been made of the promissory note, dated 1-3-2000. Furthermore, the amount claimed from the respondents/ defendants through the said notice, is Rs,15,42,000 and not the suit amount of Rs,16,54,000. Learned counsel for the respondents/ defendants argued that the notice (Exh.D.7) further proved the fact that the disputed promoted had been forged and fabricated by the appellant/ plaintiff.
20. Learned counsel for the appellant/plaintiff argued that the notice (Exh.D.7) had not been proved in accordance with law because the appellant had not been confronted with the same. We, however, note that Ch. Sharafat Ali Shad, Advocate, who was the author of the notice (Exh.D.7) was also the counsel representing the appellant/plaintiff before the trial Court. The signatures of Ch. Sharafat Ali shad on the notice (Exh.D.7), in our opinion, clearly the same as his signatures appearing on the plaint. Furthermore, the said counsel did not raise any objection against the admissibility of the notice (Exh.D.7) when the same was exhibited in evidence. Furthermore, Habib Ahmed Khan (respondent/ defendant) appeared as D.W.3 and testified that the notice (Exh.D.7) had been received by him. In these circumstances, we are of the opinion that the notice (Exh.D.7) was, in deed, addressed to respondents/defendants by counsel representing the appellant/plaintiff. The contents of the notice (Exh.D.7), as noted above do not make reference to the promissory note and receipt which purportedly were executed prior in time on 1-3-2000.
' This is an added circumstances which goes to show that the promissory note on the basis of which the appellant/plaintiff filed his suit, was not executed by the respondents/defendants.
21. The upshot of the above discussion is that the appellant/plaintiff has failed to prove issue No,3.
His suit was, therefore, rightly dismissed. This appeal for the same reason also fails. It is dismissed with costs.