This appeal is directed against the judgment and decree dated 16-12-1977 whereby the learned Additional District Judge, Gujranwala set aside the decree of the trial Court dated 23rd July, 1976 and decreed the plaintiff-respondent's suit for damages.
2. According to the averments of the plaint, the plaintiff-respondent had on 7th April, 1973 entered into an agreement with one Wazir Ali to purchase a piece of land measuring 8 Kanals for a sum of Rs. 40,000 out of which Rs. 15,000 were paid as earnest money, and the balance was to be paid positively on 11th April, 1973 failing which the contract was to fall through and the earnest money was to be forfeited. As stated, the plaintiff deposited on 10th April, 1973 a sum of Rs. 25,000 in the Allied Bank Ltd., Samundri Branch of the then Lyallpur District and obtained a draft for the same being encashed from the defunct Bank of Bahawal--pur Ltd., Nowshera Virkan Branch of the Gujranwala District. The draft was presented on 11 April 1973 but it could not be encashed because the advice was not received from the Branch of origin, and the same was said to have not been received till 19th April, 1973, with there suit that the plaintiffs' earnest money was confiscated. The appellant Bank was hold responsible for the loss and thus a suit for recovery of Rs. 15,000 as damages was filed.
3. The appellant-defendants denied to be in any manner negligent and maintained that the suit was based on wrong facts and that the plaintiff had no locus stand! To sue. The pleadings of the parties gave rise to the following issues
(1) Whether the suit has been correctly instituted against the proper defendants ?
(2) Has the plaintiff got locus stand! To file the suit against defendant No. 2th
(3) Whether the plaintiff is legally entitled to recover damages from the defendants for the reasons given in the plaint. If so, to what extent ?
(4) Relief.
4. The trial Court decided the first two issues against the appellants, but issue No. 3 was found against the respondent and his suit was dis--missed. It was observed that the purported agreement was the result of an afterthought affair and figment of mere imagination. A period of four days provided for a deal of immovable property of a fair value was considered to be too unreasonable. It was held, therefore, that the Bank did not act maliciously, and was therefore, not liable for damages. In appeal an otherwise opinion was formed and the learned Additional District Judge was of the view that the defendants-respondents had failed to prove their case.
5. The main question which required determination was whether the plaintiff was legally entitled to recover damages from the reasons given in the plaint, and if so to what extent. The burden of the issue lay on the plaintiff-respondent, and the learned Additional District Judge was not justified to bank on the weakness of the appellants' evidence, and ignore whether there was any cogent material in support of the, said issue. The plaintiff should have proved his case by leading necessary evidence, and in appealable cases the Court of fact is not allowed to make a mess of evidence and come to conclusion of fact without discussing and appreci--ating it. The record show; that the plaintiff produced two witnesses and himself appeared as P.W.
3. Besides oral evidence the receipt Exh. P.
1. Three memos. P. 2 to P. 4 and the writing Exh. D. 1 have also come on the file, but the learned Additional District Judge did not refer to or discuss any of the witnesses in his judgment and did not specifically decide the questions of fact in accordance with the material on record after discuss--ing evidence and giving reasons. It was in the circumstances, not propel for him to say that the respondent had proved his case. Such a finding without taking into consideration the material on record cannot be sustained and is thus set aside. I would have remanded the case for the appellate judgment to be re-written in accordance with law. But because a substantial period has already gone out, I would like to take up the questions of fact myself and decide them here.
6. Wazir Ali P.W. 1 was the executant of the document Exh. P.
1. He said that he promised to sell a piece of land to the plaintiff for a sum of Rs. 40,000 out of which be had received Rs. 15,000 as earnest money. According to him the said amount was forfeited because the terms of the contract were not complied with. His statement could not be relied upon because he happened to have taken an easy advantage of the so-called breach of the condition=s, although in such stipulations re--lating to immovable property time could not be of the essence of the contract and the witness could not be allowed to confiscate such a heavy amount on an alleged default of only four days and then to immediately sell his land elsewhere. The witness was, therefore, not trustworthy and being a neighbour he appeared to be in league with the plaintiff. The document Exh. P. 1 itself appeared to be a doubtful document. It was termed as a receipt probably because it bore revenue stamps worth 80 paisas, otherwise it was for all purposes an agreement signed by the promisor and the promisee and attested by two witnesses. It was appar--entry attested at Gujranwala the same day by a Notary Public although it purported to have been executed at Nowshera Virkan. The explanation that they went to Gujranwala simply for attestation and that too by a person who was in law not authorised to attest such document was not convincing: This by itself showed that the document was manufactured with a design to use it as evidence. Mukhtar All P. W. 2 claimed to be an attesting witness of the so-called agreement Exh. P.
1. He was resident of a village Baddu Ratta and had come there to get two or four thousand rupees from the plaintiff, which he did not get. He has thus shown his presence as a chance witness. He is otherwise under the influence and obligation of the plaintiff because he sends his crops to him for sale as a commission agent, P.W. 3 being himself a party was not to be much relied on.
7. The three memos, Exh. P. 2 to P. 4 simply revealed that the draft was presented on the dates mentioned therein but payment could not be made because apparently the advice was not received. The learned appellate Court did not accept the need of the advice unless the same was proved by production of some rules in that behalf. The Court could take judicial notice of the fact that drafts are not honoured unless an advice in that respect is received by the Bank. The "advice" as is generally known by every body, is a device for the safeguard of any possible forgery that may be played on the bank. It cannot, therefore, be said that the plaintiff-respondent being himself a businessm an did not know this procedure. His draft issued on 10th April, 1973 was not expected to be cashed the same day or even the next day unless the advice was sent by urgent means. But as admitted by the plaintiff in his cross-examination Nowshera Virkan was a place where there was no telephonic or telegraphic arrangement. In such state of affairs the appellants could not be held responsible for delayed payment. The plaintiff, in case he was at all serious in making the payment to Wazir Ali vendor, could obtain the draft in the name of the vendor instead of in his own name, and could then very well present the draft to the vendor the same day and save his contract from being exploited. By not doing so the plaintiff should thank his own stars and in no circumstance blame the Bank for its delayed payment. The appellants-defendants, therefore, were not negligent nor were they responsible for any loss that might have been caused to the plaintiff-respondent.
For the fore-on- reasons tire suit cannot succeed. The appeal is allowed, the judgment and the decree of the learned Additional District Judge are set aside and the plaintiff-respondent's suit is dismissed with costs throughout.