' MUHAMMAD ALAM KHAN J.---This regular first appeal is directed against the judgment and decree dated 20-4-2005 passed by the learned Additional District Judge-I D.I. Khan, whereby suit of the plaintiff/appellant, Abdur Reham Khan against the defendant/respondent Yaqoob Khan was dismissed.
2. Brief, facts of the case are that the appellant brought a suit against the respondent for the recovery of Rs,29,000 on the basis of pro note dated 22-1-2001 under Order XXXVII Rule 2 of the Code of Civil Procedure. According to the averments made in the plaint,' it was alleged that due to cordial relations between the parties, the appellant, Abdur Rehman Khan, had advanced a loan of Rs,29,000 to the respondent Yaqoob Khan and to this effect a pro note was executed between them on 22-1-2001 by Qayyum Nawaz Khan, Petition Writer, duly signed by the marginal witnesses, namely, Atta Muhammad Shah and Saqlain Abbas appearing as P.Ws. 2 and 3 before the trial Court. Subsequently, when the plaintiff demanded the return of the said amount, the defended refused to pay the same, hence the suit.
3. By leave of the Court granted on 16-3-2004, the defendant/respondent, while submitting written statement, resisted the plaint on the grounds, inter alia, that the plaintiff had no cause of action, the pro note was based on fraud and was without consideration and that the suit was not competent. The divergent pleadings of the parties gave rise to the framing of seven issues including the relief whereupon the parties produced their respective evidence.
4. The learned trial Court after hearing the parties and evaluating the materials brought on record dismissed the suit through the impugned judgment- which is now impugned in this appeal.
4-A. Syed Abid Hussain Bukhari, learned counsel, for the appellant, has vehemently argued that the impugned judgment and decree are the result of misreading and non-reading of evidence brought on record. He urged that the appellant had duly proved the payment of suit money to the defendant in presence of Atta Muhammad Shah and Saqlain Abbas the marginal witnesses in whose presence the defendant had admitted the receipt of suit amount from the appellant. His contention was that Qayyum Nawaz, Petition Writher, while appearing as P.W.1 has admitted the scribing of the pro note Exh.P.W.1/1 and its contents duly entered in the relevant register at serial No,443, photo copy of which is Exh.PW.1/2 on the file. He submitted that presumption of truth is' attached to the pro note and receipt of suit money having been admitted by the defendant in presence of the marginal witnesses, therefore, the impugned judgment and decree are not sustainable under the law. Lastly, he argued that the findings of the learned trial Court on issues No,2 and 3 are against the law and facts on record, as the plaintiff/appellant has successfully proved through cogent and reliable evidence the payment of the suit amount to the defendant/respondent and in this regard a pro note was validly executed .Between the parties, the scribe whereof, has also admitted it contents to be correct.
5. In reply, Mr. Muhammad Waheed Anjum, learned counsel for the respondent, has defended the impugned judgment and decree on the grounds that the plaintiff/appellant had miserably failed to substantiate his claim about the payment of the suit money to the defendant/respondent through the pro note Exh.PW.1/1. He urged that the suit was incompetent and had rightly been dismissed by the learned trial Court, as the plaintiff/appellant had no cause of action to institute the same. His submission was that the alleged pro note was without consideration, as its marginal witnesses and the scribe, i,e, Petition Writer, have clearly negated the payment of the suit money to the defendant by the plaintiff in their presence. He submitted that since no receipt about the payment of the suit amount was annexed with the pro note and the plaintiff was contradicted on this score by the Petition Writer, therefore, the claim of the appellant was not proved and the impugned judgment and decree being based on correct appreciation of evidence need no interference.
6. It was also argued that when the consideration is not proved, then no presumption of correctness of the instrument cab be drawn under section 118 of the Negotiable Instruments Act, 1881 as held in the case of Salar Abdur Rauf v. Mst. Barkhat Bibi (1973 SCM R 332).
7. I have anxiously considered the valuable arguments of the learned counsel for the parties and thoroughly examined the entire record of the case.
8.. Perusal of the record, however, indicates that the learned trial Judge has not properly appreciated the evidence on record and the impugned judgment and decree need to be set aside.
The observations of the Court below that the plaintiff has not proved his cordial relations with the defendant/respondent and thus there was no basis for him to advance the- suit money to the defendant and the dispute between the parties appeared to be one for rendition of accounts and not for recovery on the basis of pro note, are not tenable being flimsy based on surmises and conjecturers, rather it favours the appellant when the trial Court came to the conclusion that there was a dispute between the parties but the remedy was in the shape of rendition of accounts.
9. From the evidence produced by. The appellant, he has successfully proved his claim through cogent and reliable evidence by producing Qayyum Nawaz, Petition Writher as P. W.1 i,e,; scribe of the C pro note Exh.PW.1/1 who has verified the contents of the pro note duly entered in the relevant register. He has stated that Yaqoob, Abdul Rehman and two witnesses namely Saqlain Abbas and Atta Muhammad Shah had signed the pro note and affixed their signatures on the register maintained for the purpose at serial No,443 Claim of the appellant was further proved by the testimony of Atta Muhammad (PW.1) who has stated that he was sitting in the office of Miss Shahida Advocate when Abdul Rehman came there and asked him to become a witness of a pro note who accompanied him and met Yaqoob respondent who was asked about advancement of the amount of Rs,29,000 which he admitted and then he put his signature in the relevant register.
Likewise, Saqlain Abbas appearing as P.W.2 while supporting the claim of the appellant had stated that he knows both the parties being living in the same vicinity where he lives. Abdul Rehman asked him to become a witness of the pro note and after satisfying himself about the correctness of the pro note and admission of Yaqoob Khan about receipt of the amount in question had signed the pro note and the relevant register. The learned trial Court has not adverted to this important fact of proving the execution of pro note and has non-suited the plaintiff/appellant on the sole ground that payment before the marginal witnesses at the time of execution of pro note was not proved.
So once the execution of the pro note is proved, then the burden shifts to the defendant/respondent to prove that the pro note is without consideration as held in the case of Muhammad Boota v. Faiz Ahmad (1979 SCM R 465).
10. The contention of the' learned counsel for the respondent that the payment of consideration should be contemporaneous with the execution of pro note is also without' any substance. If on the record it is proved that the consideration was admitted to have been passed on to the debtor before the marginal witnesses and scribe of the document, that will be sufficient proof of payment of consideration as held in the case of Mst. Sajida Abbas Zaidi v. Syed Arshad Ali Jaffri (1.990 CLC 1018)and . Muhammad Ashiq and others v. Niaz Muhammad and others (PLD 2004 Lahore page 95).
11. In this state of affairs, when the claim of the appellant was duly proved by the evidence of the P.Ws in support of the pro note with regard to the suit money, the learned trial Court was required to have taken into consideration the same and should not have drawn the impugned conclusion.
Thus the adverse findings recorded by the learned trial Court on various issues in the judgment impugned in this appeal are set aside.
12. In view of the facts and. Circumstances of the case narrated above, the appeal in had in accepted, impugned judgment and decree of the learned trial Court is set aside and a decree for recovery of Rs,29,000 (Rupees twenty-nine thousand) is passed in favour of the appellant-plaintiff against he defendant-respondent with simple interest at the rate of four per cent per annum from the date of institution of the suit till payment of the decretal amount with no order as to costs.
13. Above are the reasons that my short order of even date.