Petitioner, Muhammad Shaukat Hayat, through this civil revision under Section 115, CPC has called in question the judgment and decree dated 12.6.2004 passed by the learned District Judge, Sargodha, who while setting aside the judgment and decree dated 12.01.2004 passed by the learned Civil Judge Shahpur, dismissed the suit for recovery of Rs,24,800/- filed by him against the respondent.
2. The case, as set out by the petitioner, was that the respondent being his employee asked for Qarz-e-Hasanah of Rs,35,000/- for construction of house. The petitioner paid Rs,24,800/- to the respondent in presence of Muhammad Riaz (PW-2), Khan Muhammad (PW-3) and Muhammad Nawaz on 10.6.2000 at 9.00 a.m at his dera. The respondent had promised to repay the amount within six months. After expiry of six months, when the petitioner demanded his money, the respondent further sought extension of three months. Later on, the respondent refused to repay the amount. The petitioner, therefore, filed a suit for recovery of Rs,24,800/- against the respondent, who in response to summons, entered appearance before the learned trial Court and contested the suit by filing a written statement. The respondent in his written statement asserted that he had been working with the petitioner for ten months and after ten months when he demanded his salary the petitioner firstly got registered a criminal case against him under Section 506, PPC; and thereafter instituted the instant false case as he had never received any loan from him. On pleadings of the parties learned trial Court framed the following issues:--
1. Whether the plaintiff is entitled to recover Rs,24800/- from the defendant on the grounds mentioned in the plaint? OPP
2. Relief After recording evidence the learned trial Court vide judgment and decree dated 12.01.2004 decreed the suit in favour of the petitioner and against the respondent. Feeling aggrieved, the respondent preferred an appeal before the learned District Judge who accepted the same and dismissed the suit filed by the petitioner. Hence, this petition.
3. Learned counsel for the petitioner in support of instant petition has submitted that the judgment and decree passed by the learned District Judge suffers from misreading and non-reading of evidence available on record and, therefore, it is liable to be set aside; and, that the petitioner by producing witnesses before whom the amount was paid to the respondent had established his claim for recovery of suit amount but this fact was not properly appreciated by the learned District Judge while passing the impugned judgment and decree.
4. Notices were issued to the respondent but despite service he did not turn up to contest this petition and, therefore, he is proceeded against ex-parte.
5. I have heard the learned counsel for the petitioner and perused the record appended with this petition.
6. It is the case of the petitioner that the respondent in the presence of Muhammad Riaz (PW-2), Khan Muhammad (PW-3) and Muhammad Nawaz borrowed Rs,24800/- as Qarz-e-Hasana from him. The learned trial Court decreed the suit in favour of the petitioner on the ground that he had proved the transaction by producing two independent witnesses. The learned District Judge reversed the findings of the trial Court in respect of Issue No, 1 and dismissed the suit for the reason that conduct of affairs relating to financial transaction, as pleaded, was not natural. The only question which falls for determination in the present petition is as to whether the District Judge was justified in reversing the findings of the trial Court on Issue No,
1. As the judgment of the two Courts below are at variance I have respectfully following the dictum of Hon'ble Supreme Court in the case of Madan Gopal v. Maran Bepori (FLD 1969 S.0 617), compared the two judgments for their comparative merits and perused the evidence in order to find out as to whether the view taken by the District Judge is valid.
7. The petitioner instituted the suit for recovery of amount on the basis of oral agreement: It is now well established that the contract can be in writing as well as oral; and, that oral agreement is also enforceable as written agreement provided it fulfills all requirements of a valid contract. Reliance in this regard is placed on the case of Bashir Ahmad v. Muhammad Yousaf (1993 SCM R 183). It is also well settled that oral agreement requires for its proof clearest and most satisfactory evidence. The question of sufficiency and insufficiency of proof of an oral contract came up for consideration before the Hon'ble Supreme, Court in B the case of Ch. Muhammad Hussain and another v Hidayat Ali and 6 others (NLR 1981 SCJ 469) wherein it was held that the subject matter of the controversy, the conduct of the parties, nature of relationship and experience of the parties are all relevant facts for determining the credibility of oral evidence on such matter. Following is the relevant portion of the said reported case:-- "11. As regards the oral evidence and its effect and credibility, the learned counsel is not correct in insisting that oral evidence should be tested for its own worth and should not be related to the contemporaneous human conduct of affairs concerning matter in issue. Voluminous oral evidence may have little, weight where documents are ordinarily required to be prepared or are usually prepared and no satisfactory explanation for departure from the practice is forthcoming. Courts were correct in assuming that in case of agricultural land and transactions spread over a long period and involving huge amounts there should have been some evidence in the nature of writing receipt or acknowledgment to evidence the transactions. In giving effect to such a standard the Courts were not laying down the absolute rule that there could be no oral contract or that an oral contract wherever existing could be upset on such conjectural grounds or that oral evidence carries no weight. The conduct of the parties, the subject-matter of the controversy, the nature of the relationship and experiences of the parties and their handling of the matter, all are relevant for determining the credibility of oral evidence on such matters."
The petitioner in support of the assertions made in the plaint appeared before the learned trial Court as PW-1. During the course of evidence the petitioner admitted that the respondent served as his employee for 10 months and left the job on 20.4.2001; that he got the case registered against the respondent under Section 506, PPC; that he had not obtained any receipt or writing from the respondent while giving Rs,24800/- as Qarz-e-Hasnah; and, that salary of the respondent was Rs,800/- per month alongwith one maund wheat. The statements of other witnesses also support the version of the petitioner. In the light of statements of PWs and aforesaid principle laid down by the Hon'ble Supreme Court of Pakistan in the case of Ch. Muhammad Hussain (supra), I am inclined to agree with the findings recorded by the learned District Judge that in the given circumstances giving of Qarz-e-Hasnah by the petitioner to the respondent only for six months did not appeal to logic as it is a matter of common experience that when master/employer lends money to his servant/employee as Qarz-e-Hasnah then ordinarily the amount is deducted/adjusted from the salary of the employee particularly when total salary of the respondent was Rs,800/- per month and he was not in a position to repay the loan in lump sum.
There is yet another awkward aspect of the case. The petitioner has asserted in the plaint and also during the course of evidence that he gave a sum of Rs,24800/- to the respondent in the presence of witnesses i.e PW-2 and PW-3. If the petitioner had made an effort to make the payment, in presence of two witnesses then he should have also obtained a receipt from the respondent. In this perspective the, learned District Judge has rightly dismissed the suit as the Hon'ble Supreme Court in the case of Muhammad Hussain (supra) has held that oral evidence may have little weight where documents are ordinarily required to be prepared or are, usually prepared and no satisfactory explanation for departure from the parties is forthcoming. All the aforesaid facts cast doubt on the claim of the petitioner. Thus, in view of the nature of relationship between the petitioner and the respondent; and, conduct of the parties the learned District Judge rightly dismissed the suit as the petitioner had failed to E establish oral agreement on the basis of which he claimed recovery of Rs,24800/- from the respondent.
8. This petition has no merits and is dismissed leaving the parties to bear their own cost.