' FARRUKH LATIF, J.---This appeal is directed against the judgment and decree dated 22-4-1999 passed by Additional District Judge, Faisalabad whereby he decreed plaintiffs suit for recovery of money. Respondent has filed cross-objection (R.F.A. No,360 of 1999) which would also be disposed of through this judgment.
2. Facts necessary for the disposal of this appeal are that respondent had filed a suit under Order XXXVII, C.P.C. For recovery of money on the basis of pro note alleging therein that appellant was closely known to him, he often used to borrow money from him for use in his business and had returned some amount on various dates. Total amount outstanding against the appellant as on 1- 9-1990 was Rs,2,10,300. As there was difference of opinion between the parties with respect to the aforesaid figure, they referred the matter to Punchayat headed by Muhammad Amin Chaudhry according to the decision whereof the appellant was liable to pay Rs,2,10,000 at the rate of 2% per month. In pursuance thereof the appellant had executed the promissory note Exh.P.1 and receipt Exh.P.1/A on 2-9-1990. One month prior to the institution of the suit the respondent demanded the amount from the appellant but he declined to pay the same.
3. In the written statement stance of the appellant was that he along with the respondent and one Muhammad Ismail was previously running a joint business wherein they had equal shares; it was wound up in the year 1989; nothing was due against the appellant but the respondent insisted that disputed amount was outstanding against the appellant in respect of the said joint business, said dispute was referred to Punchayat headed by Muhammad Amin Chaudhry and after rendition of the accounts, decision of the Punchayat was that nothing was due against the appellant.
Thereafter the aforesaid Muhammad Amin Chaudhry offered to the appellant that he would get him a loan under the Prime Minister's Scheme; as the appellant was not eligible for the said loan it was decided that the same would be obtained in the name of appellant's son viz. Saleem Javed.
Muhammad Amin Chaudhry accordingly filled in the loan form and the relevant documents i,e, rent deed, surety bond and affidavit etc. And while obtaining the appellant's signatures on the said documents he (Muhammad Amin Chaudhry had fraudulently obtained signatures of the appellant on the pro note and receipt on the pretext that the said documents were also required to be submitted with the application for loan. Later on Muhammad Amin Chaudhry returned all the documents along with loan application to the appellant saying that he could not get the loan sanctioned but retained the pro note and the receipt. It was alleged by the appellant that he had never borrowed any money from the respondent and that his signatures on the pro note and receipt were obtained by Muhammad Amin Chaudhry by misrepresentation and fraud. Besides controverting the suit on facts few preliminary objections were also raised in the written statement.
4. On the pleadings of the parties the following is les were framed by the learned trial Court:--
(1) Whether the plaintiff has no cause of action? C D.
(2) Whether the suit of the plaintiff is contradictory and inconsistent? OPD.
(3) Whether the suit is within time? OPP
(4) Whether the plaintiff is estopped by his conduct and act to file the present suit? OPD.
(5) Whether the plaintiff has not approached the Court with clean hands? OPD.
(6) Whether the pliant is liable to be rejected in the light of Preliminary Objection No,6 of the written statement? OPD.
(7) Whether the plaint has not been correctly verified according to law on the subject? OPD.
(8) Whether the suit is baseless, false and mala fide and has been filed to pressurize the defendant? If so, whether the defendant is entitled to special cost under section 35-A, of C.P.C. ?
OPD.
(9) Whether the promissory note and receipt are the result of fraud and forgery and have been manipulated? OPD.
(10) Whether the plaintiff is entitled to the decree of recovery of Rs,2,10,000 on the basis of promissory note and receipt? OPP
(11) Relief.
5. Issues Nos.1 to 8 were found by the trial Court in the negative, Issue No,9 was decided against the defendant (appellant) while Issue No,10 was decided in favour of the plaintiff (respondent). Suit was decreed to the extent of principal amount only and interest was refused on the ground that it was against the Injunctions of Islam.
6. Aggrieved by the aforesaid judgment/decree plaintiff has come up in appeal while defendant has filed cross-objections to the extent of refusal of his claim regarding interest as well as costs.
7. Learned counsel for the appellant has assailed the impugned judgment/decree on the following grounds:--
(i) Execution of pro note was not formally proved in accordance with law as its scribe was not produced;
(ii) P.W.1, Nazir Hussain had admitted during his cross-examination that affidavit Exh.D.1 was given by him. In the said affidavit he had admitted the version of the appellant and has stated that the defendant and the marginal witness Saqlain did not sign the pro note and the receipt in his presence and the said documents were forged and fabricated. It was therefore, urged that when version of the appellant was admitted by P.W. 1, 1 suit was liable to be dismissed;
(iii) According to the promissory note and the receipt the amount in question was paid at the time of the execution of the said document whereas according to the plaint and evidence produced by the respondent the said amount was paid earlier;
(iv) Issues Nos.8 and 9 were discussed and decided together in contravention of the provisions of Order XX rule 5, C . P. C . ; and that
(v) Impugned judgment is based on non-reading and misreading of evidence.
7-A. Learned counsel for the respondent (defendant) has strongly opposed the appeal. During his arguments lie fully supported the impugned judgment except to the extent whereby interest was declined and costs of the suit were allegedly not granted. In support of the cross-objections learned counsel for the respondent argued that rate of interest was agreed between the parties, it was stipulated in the pro note hence respondent (plaintiff) was entitled to the same in accordance with the provisions of section 79 of the Negotiable Instruments Act, 1881 which is still on the statute book.
8. Learned counsel for the appellant (plaintiff) opposed the cross-objection on the ground that provisions of sections 79 and 80 are un-Islamic and are no longer good law, hence said provisions cannot be enforced by Court due to their repugnancy to the mandatory provisions of Qur'an and Sunnah.
9. We have heard arguments and have also perusal record.
10. First argument of the appellant's counsel is misconceived inasmuch as when the execution of the pro note was admitted it was not required to be formally proved and that under section 118 of the Negotiable Instruments Act presumption would be that consideration of the said document was paid.
11. Adverting to the second argument it may be observed that P.W.1, Nazir Hussain had fully supported the plaintiffs case during this examination-in-chief. During his cross-examination he admitted that stamp paper of the affidavit was purchased by him affidavit bears his signatures and contains his I.C. Number and that the same was given by him. He also admitted that it was written by Mr. Muhammad Azhar, Advocate. However, neither he was confronted with the statement made in that affidavit nor was suggested that the said document was written on his dictation or instructions. During further cross-examination he showed his ignorance about any joint business of the plaintiff-defendant and one Muhammad Ismail, he also showed ignorance that Muhammad Amin Chaudhry had suggested to the defendant to obtain loan and in that connection some documents were prepared; he specifically denied the suggestion that signatures on the pro note and the receipt were obtained through collusion and fraud, he also vehemently denied the suggestion that defendant had never borrowed any money from the plaintiff. He also denied the suggestion that the defendant had not acknowledge the amount due against him in his presence and finally it was denied by him that he had made a false statement before the Court.
12. Since P.W.1 was not confronted with the statement made in the affidavit and was not asked as to which of the two statements were correct, contents of the affidavit were of no legal significance particularly in view of the fact that during cross-examination the witness did not resile from the deposition made by him during his examination-in-chief but had supported the same. He was not confronted with the contents of the affidavit and asked if they were true; a specific suggestion was given to him during cross-examination that he had deposed falsely which was denied by the witness.
Contention of the appellant's counsel is, therefore, without force that in view of the affidavit Exh.D.1 suit could not have been decreed because respondents' own witness had admitted the appellant's version. As a matter of fact said witness had not admitted appellant's version.
13. Third argument of the appellant's counsel is also misconceived inasmuch as it is not necessary that consideration for pro note should be paid on the same date on which the pro note is executed.
Even the consideration paid earlier in time is good consideration. According to the pleadings in the plaint also, consideration was paid earlier and not on the date of execution of the pro note.
14. Under section 118 of the Negotiable Instruments Act, 1881, when execution of pro note is admitted presumption should be that consideration of the document was paid; in spite of that the respondent (plaintiff) had appeared himself in the witness-box and had also produced two P.Ws.
Who had fully supported his version wherefrom it was established that the pro note was for consideration.
15. Adverting to the fourth argument of the appellant's counsel it may be observed that it was not alleged that any prejudice was caused to the appellant by clubbing Issues Nos.9 and 10 and deciding the same together. A judgment which deals with the points raised fulfils the requirement of law even though it may not be discussed the issues separately since the said issues were inter- related no illegality was committed by the learned trial Court in discussing and deciding the said issues together.
16. Referring to the 5th argument it may be observed that the learned counsel for the appellant could not draw our attention to any material piece of evidence which was overlooked or misread by the learned trial Court. It was admitted by the appellant that the matter was referred to Punchayat which was headed by Muhammad Amin C haudhry. He also admitted during the cross- examination that it that time P.W.1 and P.W.2 were also present. Said P.Ws. Have fully supported the version of the respondent (plaintiff). Muhammad Amin Chaudhary who headed the Punchayat had no reason or motive to have got the pro note executed from the appellant by misrepresentation and fraud and that too for the benefit of another person. It is pertinent to note that appellant had not alleged that pro note was procured through fraud and cheating by the respondent (plaintiff).
Defence version of the appellant neither appeals to common sense nor was proved by him at the trial. Solitary, bald and self-serving statement of the appellant (defendant) that his signatures were obtained on the pro note and receipt through misrepresentation and fraud was not supported or corroborated by any of his witnesses. A perusal of the impugned judgment shows that neither there appears to be any misreading of evidence nor any material piece of evidence appears to be overlooked which could have affected the ultimate decision.
17. For the reasons stated above, we are of the considered view that plaintiff was entitled to the decree for principal amount along with agreed rate of interest in accordance with section 79 of the Negotiable Instruments Act, 1881. The question whether interest is repugnant to the Qur'an and Sunnah can only be examined by the Federal Shariat Court and not by Civil Court. Ordinary Court cannot strike down the legislative provisions relating to interest and so long as the law remains, the Court has to award the interest under section 79 or section 80 of the Negotiable Instruments Act and section 34, C.P.C. Which are still on the statute books.
18. In this case the appellant had himself contracted to pay the interest hence he should not have been allowed to violate his contractual obligation. In the case of a suit based on Negotiable Instruments Act the Court has to allow the contractual rate of interest.
19. Contention of the learned counsel that costs of the suit were not granted by the trial Court is misconceived. The same are granted by the trial Court in para. No,16 which shows that suit was decreed with costs.
20. For the reasons stated above, the appeal filed by the defendant is dismissed with costs while the cross-objections are sustained to the extent of interest.
' Suit of the plaintiff is decreed with interest at the contracted rate of 2% per month from the date of the pro note till the date of decree passed by the trial Court and thereafter at the rate of 6% per annum under section 34, C.P.C. Till the realization of the decretal amount.