' MUHAMMAD MUZAMMAL KHAN, J.---This appeal assails the judgment and decree dated 15-2-2000 passed by the learned Additional District Judge, Shorkot, dismissing the appellant's suit filed under Order XXXVII, rule 2 of C.P.C. For recovery of Rs,2,00,000 on the basis of a promissory note.
2. Precisely, relevant facts are that the appellant filed a suit for recovery of an amount of Rs,2,00,000 allegedly given by him to the respondent vide a pro note and a receipt dated 18-11- 1996. It was pleaded in the plaint that the respondent had agreed to return the loan amount on 9- 9-1997 and on account of his failure/denial, necessitated institution of this suit.
3. Respondent being defendant in the suit in response to notice by the learned trial Judge appeared and moved an application under section XXXVII, rule 3 of C.P.C. Seeking leave to defend it which was granted subject to furnishing of surety bond to the tune of the amount claimed in the suit. After grant of leave, respondent filed his written statement and pleaded that he did not receive any amount under the pro note which was executed on a dispute between the parties over their joint business of grains, during arbitration proceedings regarding it. Respondent further asserted that arbitrator i.e, Mehr Mumtaz Hussain and Ghulam Shabbir were nominated through written agreement dated 18-11-1996 who got from both the parties pro notes of the value of Rs,2,00,000 each. Both the parties handed over their respective pro notes to the arbitrators. The arbitrators did not announce their award whereafter the matter was referred to other arbitrators, who took surety of Rs,2,00,000 each from the parties, but the appellant showed his lack of confidence, upon which the matter was referred to another arbitrator namely Ghulam Jafar Khan to whom the pro notes, as well as, surety bonds of the parties were handed over. Subsequently arbitrator announced his award on 30-8-1999 burdening the respondent with a liability of Rs,61, 351. Award dated 28-8-1999 was claimed to be collusive which was appealed before Kazim Ali Khan who rescinded the award on 8-10-1999. The respondent also pleaded that the appellant got the pro note of the respondent from Ghulam Jafar Khan, collusively and filed this false suit against him.
4. Controversial pleadings of the parties necessitated framing of issues and recording of evidence.
The learned trial Judge who was seized of the matter after doing the needful, dismissed the suit of the appellant vide his judgment and decree dated 10-5-2003. The appellant aggrieved of the decision of the trial Court, has filed the instant first appeal. In response to notice by this Court, the respondent has appeared through his counsel.
5. The learned counsel for the appellant submits that the execution of pro note is admitted by the respondent and payment thereunder was proved by the witnesses of the appellant but a contractors view taken by the trial Court is not in consonance with the evidence on the file. He further contended that story of execution of pro note as security before the arbitrators, is mere concoction and is not proved on the file. The learned counsel for the appellant further elaborated their arguments by urging that arbitrators to whom pro notes were handed over by the respondent were neither produced in the witness-box nor was given notice to produce those pro notes which clearly negates stand taken by the respondent. It is further submitted that P.W.4 had categorically deposed that he gave loan to the appellant for onward lending this money to the respondent but he has erroneously been disbelieved.
6. The learned counsel for the respondent submitted that simultaneous execution of the pro notes of equal value, by both the parties is admitted by P.W.1, a witness of the appellant, himself, and in presence of this evidence, the entire narration of the appellant stands demolished. He further submits that the appellant could not deny at the trial, arbitration over a dispute regarding joint business between the parties, which goes a long way to show that the pro notes were executed as security without paying any consideration, thereunder. The learned counsel for the respondent further referred to statement of D.W.5 who was the last arbitrator and had delivered his award (Exh.D.1) and argued that through this evidence simultaneous execution of pro notes by both the parties is proved and in this manner, the trial Court has correctly dismissed the suit of the appellant.
7. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record of the trial Court.Execution of the pro note in question is not denied by the respondent but he claims that it was executed on demand of the arbitrators. Claim of the respondent is that both the parties executed pro notes of the same value, as security for settlement of dispute brought before the arbitrators. Parties do not deny their joint business of grains. The only point, which hinges for determination is whether the pro note in question was executed after receiving amount of loan from the appellant or as a security for settlement of dispute before the arbitrators. The appellant has himself produced Gulzar son of Mathay Khan (P.W.1), Wasiqa Navis, who deposed that on 18-11-1996 parties came to him along with Molazam Hussain marginal witness of the pro note. He though has stated that pro note in question was executed after payment of Rs,2,00,000 to the respondent yet he admitted in cross-examination that on the same day 4 pro notes were executed and one of those was executed by the appellant in favour of the respondent and this pro note was also of the value of Rs,2,00,000. According to this witness the other two pro notes were executed by Mumtaz Hussain and Muhammad Nawaz Sindeela in favour of Muhammad Yousaf and Muhammad Nawaz and those were of the value of Rs,1,00,000 each and all these 4 pro notes were entered by him in his register at Serial No,137. It is also in the statement of this witness that all the four pro notes were executed for appointment of Mumtaz Hussain and Ghulam Sabir, as arbitrators. P.W.1 is also the scribe of agreement (reference) dated 1-7-1996. D.W.5 is Kazim Ali Khan who deposed that he heard, appeal against the award given by the arbitrator and decided it vide decision dated 8-10-1999 which is Exh.D.1. According to him, the pro notes were executed as a security, without payment of any consideration thereunder.
This witness was cross-examined at a considerable length but veracity of the witness could not be shattered. Exh.D.1 is decision of D.W.5 wherein he has clearly detailed that both the parties had executed pro notes of the value of Rs,2,00,000 each, in order to secure payment under the award.
There is yet another document which is copy of the register of the scribe (P.W.1) it proves that on 18-11-1996, 4 pro notes 2 by the appellant and 2 by the respondent were scribed by P.W.1 and were entered by him in his register at Serial No,137. The above evidence clearly proves that both the parties executed, simultaneously, pro notes and sureties in favour of each other, as claimed by the respondent and no payment by any of the parties was made under these pro notes.
8. The appellants has produced P.W.4 to prove that the payment was made to the respondent under pro note. This witness stated that he loaned an amount of Rs,1,20,000 to the appellant for onward giving it to the respondent. It is not explained that during dispute over a joint business over which they were fighting how the appellant came out to give the respondent an amount of Rs,2,00,000 as a loan and that too, by getting from P.W.4 as he himself had no money. It does not appeal to logic that a person already in dispute, will lend any money and if at all, it was given out of some old relationship then why it was given against a pro note when the appellant had himself not executed any such document in favour of P.W.4 for getting money from him. Viewing joint business between the parties, dispute over rendition of accounts and appointment of arbitrators, along with the evidence above discussed, I have no hesitation in holding that pro note and the receipt on the basis of which suit was filed by the appellant, were written/executed as surety to settle the dispute and no consideration changed hands, thereunder.
9. For what has been discussed above, it is obvious that the findings returned by the learned trial Judge are absolutely in consonance with the evidence on the file and no part of it has been misread or non-read. The judgment and decree, impugned is not fancifully or arbitrary and consequently, I uphold it. This appeal has no merits in it and is accordingly dismissed with costs.