1. ' MUHAMMAD AFZAL SOOMRO, J.--- The appellant is aggrieved by the judgment dated 13-4-2004 and decree, dated 19-4-2004 whereby the learned Appellate Court in Civil Appeal No,202 of 2003 while modifying the judgment and decree passed by the trial Court i,e, 1st Senior Civil Judge, Karachi West, reducing Rs,2,00,000 (Rupees two lacs only) from the total amount of Rs,7,50,000 (Rupees seven lacs and fifty thousand only), dismissed the same with no order as to costs.
2. ' Brief facts leading to the filing of the present IInd Appeal are that appellant filed Civil Suit bearing No,504 of 2002 averring therein that the respondents had been doing business of sale and purchase of old engine and spare parts in Kabari Bazar, Shershah, Karachi. The respondents have been taking loans from the appellant and returning the same with profit but later on they failed to pay back the amount of loan despite acknowledging, giving undertaking and executing mortgage deeds, hence an amount of Rs,7,50,000 remained outstanding against them. He prayed the following relief in his suit:- "(A)Judgment and decree of Rs,7,50,000 against the appellants Nos.1 and 2 jointly and severally.
(B) Profit at the rate of 14% as per prevailing bank rate from the date of filing of this suit on the principal amount till realization."
3. ' The respondents being defendants filed their written statement through their attorney namely, Muhammad Saeed raising legal objections that since the documents, having been relied upon by the appellant in his plaint are forged, he has not come to the Court with clean hands and therefore, he has no cause of action. It has, further, been averred that appellant is not a businessman but a Soodkhor who used to give amount to innocent persons and trap them cleverly. However, they admitted that they had received Rs,5,50,000 from the appellant but an amount of Rs, 16,00,000 was repaid including the interest. Furthermore, the appellant created harassment to the respondents whereupon they sent a notice on 15-4-2002 whereafter respondent No,1 had also, filed a constitutional petition bearing No,169 of 2002 in this Court. It has, also, been averred in the written statement that the appellant kidnapped respondent No,1 and obtained forcibly his signature and thumb-impression on some papers. Their. Market Committee was also complained off but all in vain. On the basis of such pleadings, learned trial Court settled the following issues:--
(1) Whether the suit is not maintainable?
(2) Whether the plaintiff has no cause of action?
(3) Whether the signatures of the defendants upon the documents are forged and manipulated?
(4) Whether the defendants have paid the entire amount along with the interest?
(5) Whether the plaintiff is entitled for recovery of Rs,7,50,000 against the defendant?
(6) What should the decree be?
4. ' After framing of issues, parties adduced their evidence and the learned trial Court after hearing the counsel for the parties decided Issues Nos. I to 4 in negative, Issue No,5 in affirmative and decreed the suit of the appellant, as prayed.
5. ' The respondents filed appeal before District Judge, Karachi West bearing Civil Appeal No,202 of 2003 which was dismissed with modification, narrated above, vide impugned order.
6. ' The appellant has approached this Court by filing this IInd appeal under section 100, C.P..C. For setting aside the impugned judgments and decrees passed in Civil Appeal No,202 of 2003 by the District Judge, Karachi West to the extent of reduction of Rs,2,00,000 (Rupees two lacs only) from the decree restoring the original decree passed in Civil Suit No,504 of 2004 passed by the learned 1st Senior Civil Judge, Karachi West.
7. ' I have heard and considered the arguments of the learned counsel, appearing on behalf of the parties.
8. ' It has been contended by the learned counsel that the trial Court rightly, decreed the suit on the basis of admission and documentary evidence proving the due amount of Rs,7,50,000 payable by the respondent to the appellant. It has, further, been contended that upon challenging the said judgment and decree passed in such civil suit before the learned District Judge, Karachi West through Civil Appeal No,202 of 2003, it was dismissed with the modification to the extent of reduction of amount from Rs,7,50,000 to Rs,5,50,000 only upon admission of the loan amount of Rs,5,50,000 while the learned Appellate Court omitted/ignored the documentary- evidence exhibited as P.5 and P.6 particularly which clearly proved the amount of Rs,2,00,000 as share of the appellant in the profit from the business earned from the amount of The appellant. It has, also, been contended by the learned counsel that the learned Appellate Court erred in law not only overlooking the signature of respondent No,1 admitting the liability of payment for which respondents were severally or jointly liable but it has, also, been failed to consider the cogent evidence produced by the appellant to which he is fully supported by two independent witnesses from their own business community of Shershah Kabari Bazar. It has,, also, been contended by the learned counsel that IInd Appeal No,19 of 2004 was found not entertainable by this Court because of concurrent findings of facts by two Courts below against respondents and the question of reduction of amount of Rs,2,00,000 was not before this Court while hearing the said appeal.
9. ' On the other hand, learned counsel for the respondents has contended that since the judgment dated 13-4-2004 and decree dated 19-4-2004 were not set aside in IInd Appeal No,19 of 2004 by this Court, hence legally the present appeal cannot be allowed to the extent of restoring of decree passed by the trial Court.
10. ' I have gone through the record containing judgments of both the Courts below, evidence of the witnesses of both the sides, recorded by the trial Court, considered the arguments of both the learned counsel as well as the law relating to the point raised in this IInd appeal.
11. ' Perusal of above stated record reveals that the trial Court passed a. Judgment in Civil Suit No,504 of 2002 in favour of the appellant and decreed the suit against the respondents for an amount of Rs,7,50,000, inclusive of profit payable by the respondents to the appellant. The respondents challenged said judgment and decree before the learned District Judge Karachi West through Civil Appeal No,202 of 2003. Such appeal was dismissed with the modification to the extent of reduction of amount from Rs,7,50,000 to Rs,5,50,000 only upon admission of the loan amount of Rs,5,50,000.
12. Such modification, having been made by the Appellate Court, though dismissing the appeal filed by the respondents, has been challenged in this IInd appeal by the appellant.
13. ' Perusal of evidence of the respondents and their witnesses reveals that the same contradicts to each other totally. Furthermore; the respondents have even not examined themselves by appearing in witness-box and no sufficient and cogent reason has been assigned to nonappearance in witness-box whereas respondent No,1 examined his attorney namely Muhammad Saeed who even did not produce power of attorney in evidence. The said attorney namely Muhammad Saeed who is a material witness of respondents has deposed that respondents are engaged in selling old motor spare parts in Shershah and respondent No,2 is his brother who took loan approximately Rs,5,50,000 from the appellant. He further deposed that premature note was prepared under the influence, coercive and harassment. He also declared the signature of respondent No,2 upon Annexures "A" and "A-1", filed with the plaint, as forged as according to him respondent No,2 used to sign in Urdu whereas about the dates shown in those Annexures as 27-1-2000 and 14-3-2000, he deposed that appellant had general practice to prepare these type of documents. He further went to depose that the documents, filed as Annexures "P-7" and "P-8" were prepared in the years 2001 and the promissory note was prepared on 14-3-2000 and 9-4-2001. He also deposed that respondents had paid more than 16,00,000 to the appellant instead of Rs,5,50,000, hence there is no outstanding or interest. This evidence, in my considered view, does not carry any weight for the reason that the above-stated defence should have come from the mouth of the respondents themselves who were supposed to put themselves in witness-box and specifically deny that their signatures were forged and manipulated and their non-appearance in the witness-box has proved to make observation that they have miserably failed to establish that the said documents are forged or prepared under due influence, coercion and harassm ent. Mere assertion of the defendants, that too without supporting any document, that none of the documents has been executed by them, is not believable. The said attorney of respondent No,1 admitted in his cross-examination that he did not have any document to prove or to establish any acknowledgment of amount of Rs,15,50,000, which according to him, was paid to the appellant by the respondents. Furthermore, the perusal of evidence of witnesses Babu and Muhammad Nadeem reveals that they have not deposed a single word in respect of the allegation, levelled by the respondents against the plaintiff, that the aforesaid documents, produced by the appellant, were forcibly got executed under harassment and undue influence and coercion or the signatures are forged which fact even gets support from the failure of respondents to establish through any documentary or oral evidence that they had made any complaint to any authority. Learned trial Judge while discussing Issues Nos.3 and 4 has rightly observed about the contradictions, so made by the respondents themselves in written statement or by their witnesses in their evidence. Relevant portion of such observation is quoted for the sake of convenience:-- "The three versions have been taken by the defendants in their written statement and in evidence, i,e, they have paid the total amount and secondly the signatures are forged upon the aforesaid documents and thirdly that documents got executed under harassment. The said three versions themselves are totally contradictory to each other, because if the said documents have been executed under the undue influence, coercion and harassment and unwilling circumstances then there would have been no question of forged signatures and simultaneously if the documents bear the forged signatures then there would have not been a harassment, threats and undue influence, coercion, the defendant has also not challenged the aforesaid document before any Court of law.
14. Defendants' witnesses stated that they have paid Rs,16,00,000 instead of Rs,5,50,000 but their witness Muhammad Saeed also has admitted that he had no document to prove and establish having paid the amount. Muhammad Saeed also has not produced in evidence any power of attorney that he has been authorized by defendants to appear in this matter on their behalf, it means that he has no authority to appear on behalf of the defendants."
15. ' In view of above position, I am of the considered view that the respondents had failed to prove that the signatures upon the documents are forged and manipulated and the respondents have paid entire amount along with interest coupled with the fact that the appellant succeeded to establish his case and the learned trial Judge had rightly decreed the suit of the appellant..
16. ' So far as the contention of the learned counsel for the respondents that since the judgment, dated 13-4-2004 and decree dated 19-4-2004 were not set aside in IInd Appeal No,19 of 2004 by this Court, hence legally the present appeal cannot be allowed to the extent of restoring of decree passed by the trial Court is concerned, it may be observed here that IInd Appeal No,19 of 2004 was found not enter trainable by this Court because of concurrent findings of facts by two Courts below against respondents and the question of reduction of amount of Rs,2,00,000 was not before this Court while hearing the said appeal. Furthermore, learned counsel has neither quoted any law to persuade me that if an appeal challenging the judgment on the different point is dismissed then the appeal, arising out of the same judgment, filed by the rival party of the earlier appeal, questioning totally different point of law nor attempted to argue that if any decision being contrary to law or the Court below, having been failed to determine some material issue of law or usage having the force of law, this Court has no jurisdiction to undo the same while exercising its powers under section 100, C.P.C. Accordingly, I hold that this Court has very much jurisdiction to decide this appeal contrary to the decision, so delivered in IInd Appeal No,19 of 2004 as in the appeal, in hand, different point has been challenged by the appellant seeking modification of the judgment of the learned Appellate Court.
17. ' Resultantly, I set aside the judgment and decree, passed in Civil Appeal No,202 of 2003 by the District Judge, Karachi West to the extent of reduction of Rs,2,00,000 (Rupees two lacs only) from the decree restoring the original decree passed in Suit No,504 of 2004 by the learned Ist Senior Civil Judge, Karachi West.
18. ' IInd Appeal No,32 of 2004 stands disposed of along with C.M.A. No,1438 of 2005 which has become infructuous in view of the order passed, as above.