S. ALI HASSAN RIZVI, J. - This appeal is directed against the judgment and decree dated 20.04,2005 whereby suit for recovery of Rs. 5,00,000/- on the basis of promote and receipt was dismissed.
2. The brief facts necessary for disposal of this appeal are that the appellant filed a suit for recovery of Rs. 5,00,000/- on the basis of promote and receipt. This amount allegedly was borrowed by the respondent to invest in business and executed a promote and receipt on 06.1(^2002 with the condition to be returned after one year, which he failed to return. The respondent refused the borrowing of any amount and claimed to be illiterate and old person haying very weak eyesight.
Also the ground taken was that in fact plaintiff/appellant was a defaulter of Habib Bank Limited, and agricultural land measuring 2 acres was put at auction. The son of respondent was also defaulter and the plaintiff/appellant in order to file an application to set aside ex parte decree tricked to put his thumb-impressions and no consideration amount was paid and witnesses shown thereon are fictitious. He never had borrowed any amount or executed the promote. The plaintiff/appellant is financially weak and the thumb-impression shown on the promote are result of fraud.
3. . The learned Trial Court framed the following issues arising out of pleadings of the parties:- ISSUES:
(1) Whether the defendant' is liable to pay Rs. 5,00,000/- which- received as debt after executing Pronote and Receipt dated 06.10.2002', to the plaintiff? OPP
(2) Whether the plaintiff obtained thumb impression of defendant fraudulently and afterwards manoeuvred fabricated Pronote and Receipt and filed suit against the defendant.
(3) Relief.
4. The plaintiff examined four witnesses including his statement as PW2. He got recorded in his examination- in-chief that respondent/defendant borrowed Rs. 5,00,000/- in presence of Sallu son of Ramazan, Bashir Ahmad son of Qasim Ali and Nazir Ahmad son of Ahmad Din for his personal need to invest in business. The promote EX. PI and receipt Ex. P2 were executed. This amount was agreed to be returned within one year, which he failed to do so.. He also got recorded that name of PW Sallu son of Ramazan was cut of from Ex. P1 as he proceeding abroad for gain. The other PW also supported the case of plaintiff/appellant. The defendant/respondent in rebuttal produced Nasir Mehmood-DW1, Abdul Rasheed-DW2 and DW4-Malik Zafar Iqbal, Advocate and his statement was recorded as DW3 deposing that the plaintiff/appellant and son of defendant/ respondent Muhammad Aslam had been taking loan from the bank. The agricultural land of the appellant/plaintiff was attached as a result of a decree of the Banking Court. The son of the respondent also was defaulter of the bank and an ex parte decree was passed against him for which the appellant persuaded him to file the application to obtain his thumb-impression on plain papers. The respondent claimed a illiterate and about 80 years old having very weak eye-, sight and a fraud had been committed with him. The other witnesses supported his version and got recorded their statements in the same manners. The learned Trial Court after receipt of the documents and recording the evidence come to the conclusion that the presumption of execution of promote with consideration has been rebutted with sufficient evidence, so, burden to prove the execution of-such promote would shift upon the plaintiff/appellant to bring on record some evidence to show that factually such a consideration ' was paid. The learned Trial Court also referred the cross- examination portion of PW 1 deposing that no transaction of money in his presence has taken place. PW1 replied to a question that he has not affixed the thumb impression upon the promote in presence of any witness and even respondent had not affixed the thumb impression in his presence. The appellant admitted that he stood surety of the defendant's son on account of attachment of the property. PW2 admitted that he filed an application to the Monitoring Cell against the respondent in which Rai Muhammad Sadiq was appointed as Arbitrator, which was dismissed later on. PW3 denied the registration of F.I.R. 186/87 got registered at the instance of son of the defendant/respondent whereas the respondent' produced the evidence Ex. D8. To Ex. D11 showing PW3 as nominated accused of the said F.I.R. The learned Trial Court decided issues Nos.
Land 2 against the appellant observing that the evidence of the appellant is unbelievable and the appellant has badly failed to discharge the onus on issue No.1
5. Learned counsel for the appellant argued that the execution of the Ex. P1 and receipt Ex. P2 is not denied. The witnesses of the appellant had supported the borrowing of the amount, which the respondent had taken to invest in business. In his view in presence of his admission for execution of promote and receipt Ex. PI and Ex. P2 stand proved and there was no rebuttal thereof and the suit was dismissed illegally.
6. Learned counsel, for the respondent submits that the appellant was a defaulter while son of the respondent was also a defaulter of the bank. The appellant obtained the thumb impression of the respondent on certain papers to file an application to set aside the ex parte decree. Otherwise, he never took any amount. That the promote and' receipt are result of fraud and without consideration.
7. We have heard learned counsel for the parties and have gone through the available record. The suit was based on promote. The respondent has taken the ground that in fact the appellant/plaintiff has taken his thumb-impression on certain papers in order of file an application to set aside the ex parte decree against his son. In such-like situation, the burden to prove was on the plaintiff/appellant to prove the consideration and if he succeeds the onus will then be shifted on the defendant/respondent.
8. Our finding on the issues Nos. 1 and 2 is as under:-- "The respondent clearly denied , the receipt of consideration amount and plaintiff failed to prove any business of respondent to invest the amount. The age of the respondent a village simpleton is admitted. The appellant and son of respondent both were defaulter1 of the bank and speaks sufficient about the financial status of the appellant/plaintiff. The PW2, plaintiff/appellant filed application to the Monitoring Cell against the defendant/respondent in which Rai Muhammad Sadiq was appointed as arbitrator a relevant witness had not been examined, by any of the parties. One Sallu who was witness of the alleged transaction has not been examined by the appellant PW3 denied the registration of the case F.I.R. No. 186/87 whereas he was found involved in that case. The PW1, scribe (Riaz Ahmad) deposed that Bashir Ahmad son of Qasim was not witness but his name as such was recorded at the instance of appellant. Similarly, the promote was already thumb marked by Muhammad Shafi and Sallu. PW3 stated the story of execution of the promote in altogether different way. Sallu PW had not proceeded abroad and PW3 admits that he is residing in Pakistan. His evidence has been with-held. PW2 appellant/plaintiff. Is owner of two acres and admits to having no other business, The PW1 scribe did not state the name of Bashir Ahmad PW3 at the time of transaction. The PW3 Bashir Ahmad is not reliable and trusted because he denied his involvement in case F.I.R. No. 186/87 whereas it stand proved he was an accused. In the nutshell the appellant failed to prove the payment of in question consideration amount. We found the statements .Of PWs 1, 2, 3 and 4 afore-mentioned lacked luster of impartiality. The appellant failed to prove what was the occasion to deliver money to a old man to invest in business whereas he a illiterate and rustic villager of advance age having no business. There was no witness of passing on of any transaction and a simpleton villager was tricked to put his thumb- impression on the promote in question while none of the witnesses was present and burden of proving of consideration could not be discharged by the appellant."
9. For the reasons above, we see no justification to interfere with the judgment and decree of the learned Trial Court by which the suit of the appellant was dismissed and this Regular First Appeal is also dismissed with costs.