Mahmood Ahmad Bhatti, J.--Zarai Tariaqati Bank Limited instituted this appeal to challenge the legality, correctness and validity of the judgment and decree dated 15.04.2008 passed by learned Judge Banking Court-I, Multan, whereby the suit of the respondent for declaration was decreed.
2. The facts, in brief, are that Jindwadda, respondent instituted a suit for declaration, contending therein that he took out a loan of Rs. 85,000/- from ADBP to purchase a trolley and a wheat thresher. He executed an agreement dated 13.04.1992 in favour of Zarai Tariaqati Bank Limited. In return for the loan, he got his land measuring 67 kanals 15 marlas situated in Mouza Fazal Wala, Tehsil and District Lodhran mortgaged with the Bank. It was further averred by him in the plaint that he paid back the entire loan together with the mark-up thereon. To be exact, he liquidated his liability by repaying an amount of Rs. 17,000/- while he had obtained a loan of Rs. 81,000/-. As a result, the bank issued him a clearance certificate dated 08.11.1999. On the basis of the aforesaid clearance certificate, mutation of redemption No. 366 was attested on 15.11.1999. He was secure in the knowledge that his land was free from all charges. Some four years after the attestation of Mutation No. 366, he received a notice from the bank demanding that as he owed Rs. 56,000/- to the ADBP, he was to pay it by 10.10.2003, failing which he would be arrested. On the basis of these averments, he instituted a suit fbr declaration, challenging the issuance of the aforesaid notice to him as well as seeking a declaration that nothing was due from him.
3. The defendant entered appearance and filed petition seeking leave to defend. The defendant's prayer was allowed by the Banking Court vide order dated 23.05.2005. Out of the divergent pleadings of the parties, the following issues were framed.
ISSUES:
1. Whether the suit is not maintainable in its present form? OPD
2. Whether the plaint is liable to be rejected for want of cause of action? OPD
3. Whether the plaintiff has not come in the Court with clean hands in order to digest the outstanding amount of loan against him maliciously? OPD
4. Whether the plaintiff is entitled to the decree for declaration that the clearance certificate dated 15.11.1999 and the consequent mutation of redemption No. 366 dated 15.11.1999 were genuine and the plaintiff is entitled to the permanent, injunction as prayed for? OPP
5. Relief.
4. In support of their respective pleas, the parties to the suit/appeal adduced evidence. Only one witness from each side was examined. The plaintiff appeared as his own witness as PW-1. He reiterated the contents of his plaint. He was subjected to cross-examination, but he did not budge an inch from his stance. He denied all the suggestions made to him that the clearance certificate produced by him was a fake and forged document. He also denied that the attestation of mutation of redemption No, 366 dated 15.11.1999 was the outcome of fraud and misrepresentation. As against this, the ADBP examined Maqbool Ahmad, Mobile Credit Officer, who appeared as DW-1. His examination-in-chief is also consistent with the stand of the bank that the plaintiff had perpetrated fraud upon it. Both the parties also tendered in evidence a number of documents.
6. As stated above, the learned Judge Banking Court-I, Multan found for the plaintiff/respondent and decreed his suit as prayed for. Under Issue No, 4, which was the crucial and core issue, it was inter alia held by him that:-- Were denial on his part to the documents Exh.P1, Exh. P2 and Exh. P3 without any solid and cogent proof could not be adjudged as sufficient to dislodge the cause and contention of the plaintiff. The clearance certificate stands issued in favor of the plaintiff and mutation of redemption has also been sanctioned in his favor and the Zarai Pass Book has also duly been returned to him on the payment of the entire amount of loan with mark up. The plaintiff has paid more than the loan amount obtained by him, therefore, the defendant bank is not justified to cause harassment and exercise coercive measures qua the plaintiff on account of further claim of Rs, 54,000/-when the manager of the defendant bank who had issued clearance certificate in his favor on 15.11.1999 has not taken to task and the mutation of redemption No, 366 is still intact in the Revenue Record and in the presence of this document, the subsequent entries reverse to the cause of the plaintiff at the behest of the defendant bank are illegal, invalid and ineffectual qua the rights of the plaintiff, therefore, I am persuaded to believe that the plaintiff is not only entitled to a decree for declaration but also to the permanent injunction as prayed for. In the result, the issue is decided in favor of the plaintiff and against the defendant.'
7. Learned counsel for the appellant contends that the impugned judgment and decree dated 15.04.2008 passed by learned Judge Banking Court-1, Multan is the outcome of misreading and non-reading of evidence; that the learned trial Court did not attach any importance to Exh.D1, an extract from Dispatch Register containing pages from 11.11.1999 to 17.11.1999; that Exh. D1 was a sufficient proof; that Exh.P1, the redemption certificate alleged to have been issued by the Bank was never entered there and that its entries belie the stance of the plaintiff that the clearance certificate (Exh. P1) was issued by the Bank; that the learned trial Court proceeded on conjunctures and surmises; that the statement of loan account (Exh. D4) maintained by the Bank, which has a presumption of truthness attached to it, under the Bankers Books Act, 1891 was brushed aside.
Above all, it was argued that subsequent Mutation No, 915 sanctioned in favor of the appellant bank negates the assertions of the respondent that his land mortgaged with the bank stood redeemed in the wake of the issuance of redemption certificate (Exh. P1).
8. Learned counsel for the decree- holder/respondent controverts the arguments made by the learned counsel for the appellant. It was emphasized by him that had the plaintiff carried out deception and committed fraud, pass book (Exh. P3), which remained in the custody of the appellant Bank all along-from time of granting loan to the plaintiff until clearance of all his outstanding dues, could not have been delivered to him. He took the Court through the entries recorded in the pass book. It was also argued that the very fact that no case of forgery, fabrication and fraud was ever got registered against the plaintiff by the Bank goes a long way to show that the allegations levelled by it are baseless, groundless and unfounded. In short, the judgment of the learned trial Court was supported in its entirety.
9. We have heard the learned counsel for the parties and perused the record of the case with their assistance.
10. We are struck by the fact that Mutation No, 366 relating to redemption of the land of the respondent/plaintiff was attested on 15.11.1999 and the appellant bank did not spring into action for almost four years, when a notice was issued to the respondent/plaintiff demanding an amount of Rs, 56,000/- from him. This fact by itself casts doubt on the claim of the appellant that deception was carried out by the respondent/decree-holder. Again, the pass book (Exh.P3) was held in safe custody by the appellant bank. A perusal of its entries on pages Nos. 29, 30 & 31 shows that it was recorded therein that the respondent had liquidated all his liability and nothing was due or outstanding from him. Page No, 31 thereof carries the seal of the bank as well as the signatures of the Manager of ADBP Lodhran. Another entry recorded therein shows that Mutation No, 366 was already entered/sanctioned and all these entries are dated 15.11.1999, the day when Mutation No, 366 relating to redemption of land of the respondent was attested. Since ADBP, the appellant bank never got a case registered against any of its officials who either in collusion with the respondent or on their own handed over the pass book to the decree-holder nor did it lodge any complaint against Jindwadda, the owner of the Zarai pass book, it can be safely assumed that pass book in question was not stolen by him. Furthermore, it cannot be lost sight of that the appellant bank did not examine the Manager, whose signatures are alleged to have been forged and fabricated by the decree-holder, which ultimately paved the way for the redemption of the land of the plaintiff. In point of fact, the veracity of the statement of PW1 to the contrary was not seriously challenged in the course of examination. By all standards, a tepid and half- hearted cross-examination was carried out. The plaintiff not only stood the test of cross-examination, but he did not budge an inch from his stance taken in the plaint. He remained consistent throughout the case. We are also not impressed with the argument of the learned counsel for the appellant that the learned Judge Banking Court-I, Multan did not attach any importance to Exh.D1, thereby tilting the balance in favor of the plaintiff/decree-holder. To begin with, Exh.D1, an extract from a Dispatch Register carried no value at all for the reason that it was produced in the statement of Maqbool Ahmad DW-1, who was not its scribe, and did not make any entry therein nor was he the Record Keeper of the Dispatch Register: We have no doubt in our minds that he entries recorded in the Dispatch Register maintained by the appellant bank did not have any presumption of truthness attached to them either under the Qanun-e-Shahadar Order, 1984 or the Bankers Books Evidence Act,1891.
11. As underscored above, the Manager of the Bank, whose signatures are alleged to have been forged and fabricated by the Plaintiff/decree-holder did not enter the witness box.Presumption by the validly be raised that he did not wish to be exposed. Be that as it may, the withholding of the evidence of such a crucial witness as the Manager of the appellant bank is too glaring a factor to be overlooked.
12. We have minutely examined the evidence produced by the parties and attended to the reasoning of the learned Judge Banking Court. The impugned judgment does not suffer from the infirmity of misreading and non-reading of evidence. The suit of the plaintiff was I rightly decreed, and we have not been persuaded to interfere with the impugned judgment and decree passed by the learned Judge Banking Court-1 Multan.