' MAULVI ANWARUL HAQ, J.--- On 27-9-2004 the respondent No,1 (hereinafter to be referred to as the plaintiff) filed a suit against the petitioners and the remaining respondents. In the plaint, it was stated that the plaintiff went to Saudi Arabia 35 years ago and worked for gain there and made some money. He returned to Pakistan in the year 1985 and started his business of developing Housing Colonies and disposing of the same. He is a tax-payer and his business concern is registered. Muhammad Hussain Cheema, the predecessor-in-interest of the petitioners, had died on 31-8-2004 and till his death he was employed as a head clerk in the Settlement Department.
The plaintiff needed a plot. Such a plot measuring two Kanals belonging to respondent No,5 was available in Madina Town, Faisalabad. She having a transfer deed but it was yet to be incorporated in the Revenue Records. There was some litigation pending negotiations were held with respondent No,4, a son of respondent No,5, who expressed that money is urgently required but the matter is still pending in Court and that he will get the matter cleared. He demanded an earnest of Rs,two million. Muhammad Hussain Cheema was a common friend of the plaintiff and the said respondent. He was an honest person and \ vas not reputed to be corrupt. It was settled that a sum of Rs,two million will be deposited with Muhammad Hussain Cheema as an Amanat and after the termination of the litigation, the amount was to be disbursed accordingly. By means of a cheque fully particularized in para.5 of the plaint, the said amount was paid to Muhammad Hussain Cheema on 6-8-2004 who got it cleared and the amount was transferred to his Bank Account No,15329 with the respondent No,2. On 28-8-2004 Muhammad Hussain. Cheema told the plaintiff that he cannot retain the said amount for long and wants to return it to the plaintiff.
However, the matter was postponed to the next day as some guests were coming to ask for the hand of the daughter of said Muhammad Hussain Cheema. The next day, Muhammad Hussain Cheema, went to Lahore. He talked to him on telephone at 9-45 p.m. And he was told to come to the office and get his money. However, as it later turned out that Muhammad Hussain Cheema died at 11-00 p.m. On the same night. He contacted his L.Rs, who asked him to deliver a photocopy of the cheque and that they will make inquiries and the amount will be returned. There is a reference in para.7 of the plaint to a written agreement executed by Muhammad Hussain Cheema which was shown to the L.Rs, The monthly emoluments of Muhammad Hussain Cheema were not more than Rs,7/8 thousand and the said amount of Rs,two million lying in his account belongs to the plaintiff. Despite making inquiries, the L.Rs, have refused to return the said amount. A decree for declaration and recovery of the said amount was accordingly sought. The petitioners in their written statement took the plea that the plaintiff is a very fraudulent person against whom several criminal cases are pending. According to them, Muhammad Hussain Cheema, used to sell and purchase the property as a part-time job and large amounts were always present in his account.
The precise plea taken by the petitioners was that Muhammad Hussain Cheema had given the said amount of Rs,two million as a loan to the plaintiff and it was returned to him by the plaintiff by way of the said cheque which was encashed and the amount transferred to the account of the deceased person. Issues were framed. Evidence of the parties was recorded. The learned trial Court decreed the suit on 5-12-2005. A learned Additional District Judge, Faisalabad, dismissed the first appeal filed by the petitioners on 4-4-2006.
2. Learned counsel for the petitioners contends that the learned Courts below have committed serious irregularity in exercise of their jurisdiction while passing the impugned judgments and decrees. He explains that notwithstanding the fact that the document stated to have been executed by the Muhammad Hussain Cheema deceased was disallowed to be produced by a Court on revision and it was de-exhibited. Both the learned Courts below have relied upon the same and also on the testimony of P.Ws.2 and 3 whereby the execution of the said document was sought to be proved. He has also argued that the statement of account also could not be relied upon as objection was raised thereto. According to him, if the said document is excluded then there is no evidence of any Amanat and the impugned judgments are based on conjectures.
Learned counsel for the respondent No,1 while finding it difficult to oppose the said first contention of the learned counsel for the petitioners urges that even if the said document and the said testimony is excluded on the rule of preponderance of evidence particularly in view of some material admitted facts of the case, the impugned judgments and decrees cannot be interfered with in exercise of the revisional jurisdiction. According to him, admittedly, money lying in the account of the deceased person and transferred therein a few days before his death was given by the plaintiff. There is no evidence on record of financial capability of the deceased to loan out such a huge amount to the plaintiff and according to the learned counsel there is no evidence on record that the amount was, in fact, borrowed by the plaintiff and given to him by the deceased person.
As to the statements of account, he draws my attention to the orders passed by the learned trial Court to urge that the statements of account were produced and placed on record after recording no objection on behalf of the petitioners.
3. I have gone through the records of the learned trial Court which are available, with the assistance of the learned counsel for the parties. I have already noted above the material contents of the respective pleadings of the contesting parties. There is no denial that the amount was transferred to the account of Muhammad Hussain Cheema deceased with the respondent No,2 Bank from the account of the ,plaintiff after clearance of a cheque issued by him. It is also admitted that the deceased till his death was employed as a Head Clerk in the Settlement Department. The parties are ad idem that he was a very honest person and was not reputed to be corrupt.
4. Before I proceed to examine the evidence, I deem it appropriate to note here that I am in full agreement with the learned counsel for the petitioners that the documents referred to as an Amanatnama in the impugned judgments could not have been looked into along with that part of the testimony of the P.Ws. Relating to its execution. The statement of P.W.2 Master Karam Ali was recorded on 20-9-2005 when the document was sought to be produced in evidence. The objection was raised. For purposes of deciding the objection, the proceedings were stopped. The objection was overruled by the learned trial Court vide a separate order recorded on the same date. The petitioners questioned this order in revision which was allowed by a learned Additional District Judge, Faisalabad, on 30-9-2005 who held that the document cannot be allowed to be tendered in evidence. It is this order which is to prevail.
5. The plaintiff Muhammad Javed Iqbal appeared as P.W.1 and made a statement in accordance with the said plaint. He was cross-examined at length and his cross-examination is spread over six pages. Only a single suggestion was given to him and he denied that the amount was given to him as a loan by Muhammad Hussain. Another suggestion given and denied was that for this purpose Muhammad Hussain got transferred the amount in his account. There is no suggestion at all as to when and in whose presence the amount was given as a loan by Muhammad Hussain Cheema to the plaintiff and as to wherefrom he had brought the said amount of Rs,two million given as a loan to the plaintiff. The statement of Master Karam Ali P.W.2 is relatable only to the execution of the said document which as I have already stated above cannot be considered. P.W.3 is Manzoor Ahmad.
This witness apart from stating regarding the execution of the document dated 5-8-2004 has further stated that in connection with an agreement of the plaintiff with respondent No,5 regarding a plot the amount of Rs,two million was deposited with Muhammad Hussain Cheema as an Amanat. This witness has been cross-examined with reference to execution of the document but as to his specific statement not a single question has been put to him.
6. On the other hand Muhammad Awais petitioner No,1 has appeared as D.W.1. He has stated that one day in the evening his father told him to call his maternal-uncle as some money had been loaned out to some person and which is to be taken back. He explained that it was a loan of Rs,two million given to Javed Iqbal plaintiff which was to be so taken back. He called his uncle Amanat Hussain. His father and his uncle went to the house of the plaintiff and when they returned they told him that the plaintiff has promised to return the amount within 2/3 days. On 5-8-2004 Javed Iqbal plaintiff came to their house and gave the cheque of Rs two million. In his cross-examination, he stated that he is employed as a Godown Keeper with the National Bank since the last 9 years. His present pay is Rs,8,200 per month. His father was an Assistant in the Settlement Department and on his return from the office he would deal in property. His father had no office in this behalf. He could not state the details or particulars of any transaction or the property dealt with by his father. He did not know as to how much commission his father used to receive. He insisted that apart from the account in question, his father had other Bank Account as well. He was confronted with his written statement. It turned out that the said facts narrated by him are not pleaded therein. According to him, for the first time, he got introduced with the plaintiff on 5-8-2004. He was also confronted with the statement of Bank Account and he stated that he does not know as to. Which Bank it relates.
However, he admitted that the cheque given by the plaintiff was deposited in the Habib Bank Limited. He then stated that prior to the said day when he was asked to call his maternal-uncle, his father had never told him about the said loan. There is a note by the learned trial Court that the witness has refused to answer the question that how the loan amount was paid by his father. He then stated that his father used to keep Rs,4/5 lacs in cash in the house and the property dealers would come to pay him money. However, he was unable to state the name of any such property dealer. He was unable to state that as to whether in any other account his father has a sum of Rs two million.
7. The said Arnanat Hussain appeared as D.W.2. He stated that Muhammad Hussain was the husband of his sister. On 1-8-2004 Awais D.W.1 informed him and he went to the house of the deceased who told him that he has to get back a sum of Rs,two million from the plaintiff. Both of them went to his house and the deceased demanded back the amount while the plaintiff promised to pay within 2/3 days. On 6-8-2004 the deceased informed him that the plaintiff has given him the said amount by means of a cheque which has been deposited in his account. In cross-examination, he stated that for the first time he met the plaintiff on 1-8-2004, he was given the relevant suggestions which he denied. However, one thing is certain that whereas the D.W.1 refused to answer as to how his father arranged and made the payment of Rs,two million to the plaintiff as a loan, the statement of D.W.2 is absolutely silent on this aspect of the matter.
8. On 29-11-2004 the plaintiff filed an application praying that Habib Bank defendant be directed to produce the statement of Account No,15329 of Muhammad Hussain Cheema. This application was taken up on 13-12-2004. Learned counsel for the petitioners stated that he has no objection if the said application is accepted and the bank statements are filed in Court. These were accordingly filed by the Bank in Court on 16-12-2004. These were exhibited on 16-11-2005 in the statement of the learned counsel for the plaintiff. These were admitted subject to the objection. I called upon the learned counsel to explain as to what was the objection; he has nothing to state. This account finds reference in the plaint and it has not been denied that Muhammad Hussain Cheema did not have this account or that the amount was not transferred to his account. P.W.1 was also confronted with the same and he did not deny that this is not the statement of account of his father. He only expressed ignorance as to the bank to which it relates. He, however, admitted that the amount was deposited in the account with the Habib Bank. I, therefore, do not find any objection to the reading of the said documents in evidence. As noted by me above, the said statement was filed in Court on 16-12-2004 and it is w.e.f. 5-10-2000 to 2-9-2004. The file stamped by the Court bears the date 16- 12-2004 on all the pages of this statement. However, whereas statement from 5-2-2000 to 1-7-2002 is present at pages 121 to 127 of the file while from 1-7-2002 to 2-9-2004 are at pages 29 to 35 of the file. Exh.P.3 has been endorsed on the first three pages while Exh.P.4. Is endorsed on the 4th page and there is a note that it is six pages. It appears that somehow or the other the last 6th page came to be tagged at a different place in the trial Court file. I am satisfied that all these are part of Exh.P.3 and Exh.P.4. The statement of account Exh.P.2 pertains to some Abdul Khaliq and both the learned counsel for the contesting parties admit that this is not the relevant statement. I have accordingly examined the said statements of account pertaining to Account No,15329-9 of Muhammad Hussain Cheema, with the assistance of the learned counsel for the parties. I find that the highest credit entries are of Rs,75,000. These are dated 5-10-2000 and 28-7-2001. Otherwise the transactions of deposits or withdrawal are not of more than of Rs,10,000 to Rs,15,000. The credit balance on 2-8-2004 is Rs,23,247. On 7-8-2004 is the entry of said Rs,two million and then on 2-9- 2004 is a credit entry of Rs,7,897.
9. Having, thus, examined the records, I do find that after excluding the said document referred to as an Amanatnama and the oral testimony pertaining to its execution, it cannot be said that there has been a misreading of evidence on record and further that the conclusion arrived at by the learned Courts below could not have been arrived at on the basis of evidence available on record.
10. The civil revision accordingly is dismissed but without by orders as to costs.
11. The records of the learned trial Court be returned back immediately. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.