' MUHAMMAD KHALID MEHMOOD KHAN, J.---This revision petition has been directed against the judgment and decree, dated 17-1-2000 passed by the learned appeal Court. Brief facts available on record for disposal of revision petition are that appellant/defendant and predecessor-in- interest of respondent Muhammad Saleem are real bothers and they were living jointly after the death of their parents. The estate left by their parents was not divided between the two brothers, Muhammad Saleem predecessor-in-interest of the respondent was married in 1989 and in 1989, some disputes arose between the parties about division of moveable or immovable property inherited by them and ultimately these were settled on 12-5-1990. As per settlement, the appellant was to pay a sum of Rs,65,000 as consideration of his share in the property under his possession.
The defendant prepared a Pay Order No,OAL-002989 of Rs,65,000 drawn on Habib Bank Limited, University Branch New Campus, Lahore but subsequently the said Pay Order was got cancelled by the purchaser of the same and the plaintiff was unable to receive the said amount. The plaintiff predecessor in interest of respondent filed a suit for recovery of Rs,65,000 and asserted that the defendant failed to pay Rs,65,000 as per agreement between the parties and instead of paying the amount of Rs,65,000, the defendant filed a suit alleging that he has paid Rs,65,000 to the plaintiff and the plaintiff is not returning a sum of Rs,23,000 to him. The said suit was ultimately on 8-6-1993 was dismissed and the learned trial Court came to the conclusion that Pay Order amounting to Rs,65,000 was not en cashed. On the failure of defendant to pay amount of Rs,65,000, the deceased plaintiff initiated the suit for recovery of Rs,65,000. The defendant appeared and contested the suit. He asserted that the matter between the parties were finally settled on 27-5- 1997 and the plaintiff has to pay a sum of Rs,23,000 to him as he has paid Rs,65,000 to plaintiff through Pay Order. The learned trial Court framed the following issues from the pleadings of the parties:-- "(1) Whether the plaintiffs have got to cause of action and locus standi to file the suit? OPD
(2) Whether the defendant is entitled for the award of special costs under section 35 of C.P.0 if the suit of the plaintiff is dismissed? OPD
(3) Whether the plaintiff is entitled for the recovery of Rs,65,000 from the defendant? OPP (3A) Whether the present suit is bared by limitation? OPD
(4) Relief.
2. Both the parties adduced their respective evidence both oral and documentary and finally vide judgment and decree, dated 9-10-1998, the suit of the plaintiff was dismissed. The deceased plaintiff assailed the said judgment and decree through an appeal and the learned appeal Court vide judgment, dated 17-1-2007 accepted the appeal and passed a decree for recovery of Rs,65,000. The petitioner/defendant has assailed this judgment and decree through the present Civil Revision. The learned counsel for the petitioner contends that the learned appeal Court has not properly appreciated the evidence available on record from which it is proved beyond any shadow of doubt that plaintiff has received the amount of Rs,65,000 through Pay Order drawn on Habib Bank Limited, University Branch, New Campus Lahore. Learned counsel for the respondent supports the impugned judgment and submits that it has been proved on record that Pay Order of Rs,65,000 was got issued by the petitioner but was not en cashed because the petitioner has got himself cancelled the same and received back the money.
3. Heard. Record perused.
4. P.W.1. Aftab Afzal, Manager HBL University Branch, New Campus Lahore appeared and recorded his statement and submitted the record. He deposed that he has brought the original Pay Order No,OAL002989, dated 14-5-1990 of Rs,65,000 the said Pay Order was got issued by Muhammad Shafique in favour of Muhammad Saleem. According to record of the bank Muhammad Shafique got this Pay Order cancelled and received the proceeds of Pay Order on 23-5-1990. He placed on record certified copy of Pay order as Exh.P.1., request for cancellation by Muhammad Shafique as Exh.P.2, receipt book Exh.P.3, payment book Exh.P.4. And copy of Pay Order issued register Exh.P.5.
The petitioner cross-examined the said witness. He states that Muhammad Shafique is maintaining account with our branch and categorically deposed that the Pay Order was cancelled and was not enchased by the payee. The main issue between the parties for resolving the dispute is whether the amount of Rs,65,000 has been paid or not? Whether the Pay Order was en cashed by the payee of the same or not? It is available on record that Pay Order was issued in favour of deceased plaintiff but the said Pay Order, was never collected by the payee in his account. It is further available on record that Pay Order cannot been cashed at counter and can be collected through account. The fact that Pay Order was got issued by Muhammad Shafique is sufficient to prove the version of deceased plaintiff. Issuer of Pay Order i.e, Habib Bank Limited, University Branch, New Campus Lahore has specifically confirmed that no doubt the Pay Order was got prepared by Muhammad Shafique but subsequently he requested for its cancellation and received back amount of Pay Order. There is no rebuttal of this fact and as such it is proved beyond any shadow of doubt that the Pay Order was not en cashed by the payee i.e, the deceased plaintiff.
5. It is a .Proven fact that the Pay Order was got issued by Muhammad Shafique in pursuance of settlement with his brother but the same was not en cashed by the beneficiary of the same. The facts and circumstances show that Muhammad Shafique planned to defraud the plaintiff, he got prepared Pay order in pursuance of some settlement but he himself subsequently got it cancelled and received the amount. It is bank officer who disclosed the fraud of Muhammad Shafique.
6. In my view, there is no need for going into other oral evidence. The Pay Order alone is sufficient evidence which proves the case of the deceased plaintiff and negates the version of the defendant. The learned appeal Court has rightly come to the conclusion that the defendant Muhammad Shafique has failed to pay amount of Rs,65,000 especially when the defence of Muhammad Shafique is that he has paid the amount of Rs,65,000 to deceased plaintiff through Pay Order and he has no cause of action against him.
7. In my opinion, the learned appeal Court has rightly passed the decree against the defendant for recovery of Rs,65,000 and as such I am in full agreement with the learned appeal Court. The conclusion of above said discussion is that appeal fails and is dismissed with costs throughout.