ATTAULLAH KHAN, J.---Through this regular first appeal, the appellant Haji Muhammad, Ayaz Khan (now dead and represented through legal heirs), has questioned the validity of judgment and decree dated 8-10-2007 passed by the learned Additional District Judge-IV Bannu, whereby Suit of the plaintiff/respondent Malik Khan Ayaz Khan for the recovery of Rs,17,50,000 on the basis of pro note dated 16-7-2003 together with fine of Rs,1.80.000 was decreed.
2. Facts of the case are that vide pro note dated 16-7-2003, the plaintiff Malik Khan Ayaz Khan had advanced loan of Rs, 17,50,000 to the defendant Haji Muhammad Ayaz Khan and as per terms and conditions of the pro note, the said loan was to be refunded through monthly installments of Rs, 30,000 to the plaintiff by the defendant. Further, in case of, default of monthly installment, the defendant was liable to pay fine of Rs,5000 and in this an agreement deed was also executed between the parties. When the defendant failed to pay the agreed installements with effect from 1- 8-2003 till 16-7-2006, the plaintiff filed the present suit for the recovery of Rs,17,50,000 along with fine of Rs,1,80,000.
3. The defendant was summoned who applied for leave to defend the suit which was accordingly granted and submitted written statement. The divergent pleadings of the parties gave birth to the framing of the following issues:--
(i) Whether the plaintiff has got a cause of action?
(ii) Whether the suit of the plaintiff is maintainable? OPP
(iii) Whether the suit of the plaintiff is liable to be dismissed under Order VII Rule 11, C.P.C.? OPD
(iv) Whether the plaintiff has come to the Court With clean hands? OPP
(v) Whether the defendant has taken Rs,17.50,000 from the plaintiff and has executed pro note dated 16-7-2003 in his favour? OPP
(vi) Whether the defendant had agreed to repay the loan of Rs,17.50.000 to the plaintiff in installments of Rs,30.000 per month and in case of failure to pay the monthly installment to pay further amount of Rs,5000 as fine per each non-paid monthly installment? OPP
(vii) Whether the defendant has not made any payment to the plaintiff since 1-8-2003 and is liable to pay him an amount of Rs,1,80,000 as fine besides the loan amount of Rs,17,50.000? OPP
(viii) Whether the defendant had taken only Rs, 10,00.000 as loan from the plaintiff on which Rs,50,000 was to be paid as interest?
(ix) Whether the plaintiff has not affixed proper -court-fee on the plaint? OPD
(x) Whether the defendant has paid Rs, I ,50,000 to the plaintiff in various installments and has also handed over the possession of one house measuring 5-1/2 marlas to the plaintiff, the value of which is more than Rs,10,00,000 ?OPD
(xi) Whether the suit of the plaintiff is based on mala fide ?OPD
(xii) Whether the plaintiff is entitled to the decree as prayed for?
(xiii) Relief.
4. The learned trial Judge on scanning the record and considering the arguments advanced at the bar decreed the suit of the plaintiff as prayed for vide judgment and decree mentioned above which is now under challenge in this appeal.
5. Learned counsel for the appellant argued that the execution of the agreement deed Exh.PW.1/1 along with the pro note Exh.PW.1/2 have itself made the pro note doubtful, because there was no need of agreement deed to the same affect. He further argued that the pro note is signed by two marginal witnesses which is not the requirement of law and, therefore, the pro note has no legal value and not binding upon the appellant/defendant. According to him, the appellant/defendant is liable to pay only Rs,Ten lacs which were taken as loan.
6. On the other hand, learned counsel for the plaintiff/respondent argued that both the documents are permissible under the law and have been proved through cogent evidence and that the attestation of pro note by two witnesses has no illegality though it is not the requirement of law. He further submitted that the stand of the defendant/appellant taken in the written statement is conflicting with his admission made in the cross-examination.
7. 1 have carefully gone through the record and anxiously considered the valuable arguments of the learned counsel for the parties.
8. The pro note is Exh.P.W.1. While the agreement deed is Exh.P.W.1/1. Both are to the same affect, i,e, that the defendant Haji Muhammad Ayaz Khan has undertaken to pay rupees seventeen lacs and fitly thousands to the plaintiff/respondent on demand.
9. The first question is that whether the agreement deed to the same affect was necessary and if not, whether it has made the contents of pro note doubtful.
10. As far as the pro note is concerned, it stands proved through the evidence of two marginal witnesses who appeared in the trial Court and testified that the pro note dated 16-2-2003 was genuinely exeuted between the parties.
11. Now coming to the agreement deed Exh.PW.1/l, the objection of the learned counsel for the appellant is that it was not required because the pro note was sufficient. The execution of the agreement deed has created doubt about the genuineness of pro note. In this connection, I may refer to PLD 2007 Lahore 114. It is a DB case where a similar case was before the honourable Court.
In the said case, along with the pro note, the parties also executed an agreement deed to the same affect. The said suit was decreed by the trial Court which was maintained in appeal by the honourable Lahore High Court. The Court has held that there is no illegality in execution of an agreement deed in addition to the pro note. There seems no illegality in executing two documents regarding the amount payable by the defendant/appellant.
12. One of the objection of the leaned counsel for the appellant is that the pro note was not required to had been attested by marginal witnesses which was so attested and thus it has made the pro note illegal. I would again to the same judgment wherein it has been held as under:-- "Besides the above, according to the provisions of section 2(5)(b) of the Stamp Act, 1899, if an instrument which may otherwise be a promissory note, but if attested by the witnesses, it attains the legal status of a bond and no more remains negotiable instrument; thus one of the important tests to determine whether an instrument is a bond or a promissory note, is the attestation of the witnesses. Reference in this behalf can be made upon the judgment reported as Ram Narayan Bhagat and another v. Ram Chandra Singh and others (AIR 1962 Patna 325), Haji Hamzo Panhwar v.
Muhammad Ibrahim and another (PLD 1963 (W.P.) Karachi 962) and Dayal and another v. Bhimma (1925 Oudh 188). In the light of above, we are of the considered view that the promissory note Exh.P- 15 was not required to be attested by any witness. Even otherwise, at the time, when it was tendered in evidence by the respondent, no objection was raised by the appellant and the document has been proved by the two marginal witnesses of the receipt".
13. So keeping in view the above dictum of the honourable Lahore High Court, I am of the opinion that the attestation of the pro note do not require attestation under the law. Even then, it attains a legal status of pro note if attested by two marginal witnesses. The marginal witnesses would be in the capacity of just Indorsees.
14. Coming to the evidence, the defendant appeared in the trial Court as DW.1 and he admitted in the cross-examination that he has seen his signature on the original of Exh.PW.1/1 which is correct.
He has added that his signatures were taken on blank paper. He has taken a different siand regarding the stamp paper that it was blank and in this situation the burden shifts to him to prove the same but he has failed to prove the same.
15. Coming to the conflicting stand of the defendant/appellant. I would refer first to his written statement. In para. 1, he has stated that only obtained Rs,Ten lacs as loan from the plaintiff and disowned the other document.
16. If we look to his statement in the trial Court recorded as D.W.1, another stand has been introduced which is different from the one taken in the written statement. He has stated that he has purchased one Hino Truck from the father of the plaintiff at the rate of Rs,twenty lacs, out of which an amount of Rs,Ten lacs was paid and the remaining amount was agreed to be paid at the monthly installments of Rs,15000. This is quite a conflicting and destructive of his own written statement. This means that the defendant is avoiding the payment as mentioned in the pro note on different stands.
17. In short, both the documents have been proved by the plaintiff/respondent by producing marginal witnesses and the Petition Writer. These witnesses have not been shattered in cross- examination. Payment has not been proved by the defendant, therefore in my opinion, the trial Court has correctly decreed the suit of the plaintiff against the defendant which needs no interference by this Court.
18. Consequently, I find no substance in this appeal which is hereby dismissed, leaving the parties to bear their own costs. 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.