Through instant civil revision, the petitioners have assailed judgments and decrees dated 05-3- 2015 and 26-5-2015, passed by learned Civil Judge, (East) Islamabad and learned District Judge,
(East) Islamabad respectively.
2. The facts, in brief, are that the Respondent No. 1/plaintiff filed a suit for the recovery of Rs.1.15 million along with 10% markup, and a permanent injunction. The Petitioner No. 1 was married to the son of the Respondent No. 1/plaintiff on 23-10-2010. After the marriage, the husband of the Petitioner No. 1 left for the United Kingdom as he was pursuing his studies as a student. The petitioner also got admission in an educational institution in the United Kingdom. It is alleged by the Respondent No. 1/plaintiff that she deposited an amount of Rs. 0.8 million in the account of the Petitioner No. 1 as a loan, pursuant to an oral agreement. The father of the Petitioner No. 1 had also deposited Rs.07 million in the account of the latter. The assertion of the Respondent No. 1, as reflected in the plaint, was that the said amount was deposited merely for the purposes of obtaining a student visa for the Petitioner No. 1, and that it was agreed that the said amount would be returned/refunded after the visa had been issued. It is admitted that the visa was issued and the Petitioner No. 1 proceeded to the United Kingdom. The husband of the Petitioner No. 1 divorced her on 20-10-2011. After the divorce, the Respondent No. 1 filed a suit for the recovery of the amount claimed to have been deposited by her in the account of the Petitioner No. 1, pursuant to an oral agreement. The suit was decreed in favor of the Respondent No. 1 by the learned Civil Judge 1st Class, (East) Islamabad, vide judgment and decree dated 05-3-2015. The petitioners preferred an appeal and the same was dismissed by the learned District Judge, (East) Islamabad, vide judgment and decree dated 26.5.2015.
3. The learned counsel for the petitioners has contended that; both the learned Courts below have failed to take into consideration the admitted documents filed by the petitioners and exhibited during the trial; the Respondent No. 1/plaintiff could not establish that there was an oral or written agreement for the return of the amount deposited in the account of the Petitioner No. 1; both the learned Courts have passed the respective judgments and decrees based on misreading and non-reading of evidence.
4. On the other hand, the learned counsel for the respondents has contended that the concurrent findings of both the Courts are in accordance with the law and no irregularity or illegality has been pointed out so as to require interference by this Court. It is further contended that the concurrent findings have been given by the respective Courts after taking into consideration the relevant facts and the evidence placed on record.
5. The learned counsels have been heard and the record perused with their able assistance.
6. The deposit of the amount of Rs. 0,8 million by the Respondent No. 1 in the account of the Petitioner No. 1 is admitted. It is, however, contended by the latter that at the time when the said amount was deposited the Petitioner No. 1 was the daughter-in-law of the Respondent No. 1. It is the case of the Petitioner No. 1 that Respondent No. 1 had voluntarily and without any condition deposited the amount in her Bank account so that she could join her husband i.e. The son of Respondent No. 1 and pursue her education in the United Kingdom. The learned Appellate Court, in Paragraph 6 of the judgment dated 26-5-2015, has concluded that the "fact of gift has never been disclosed in the written statement or anywhere else". The perusal of the written statement reveals that the Petitioners/ Defendants No. 1 and 2 in paragraph-7 unambiguously stated as follows: "The money transferred in the account of Defendant No. 1 was purely for Defendant No. 1 for her needs, due to love and affection as gift because she was daughter in law of plaintiff at that time. It is pertinent to mention here that after divorce plaintiff file this false and frivolous suit just to harass & disturb the answering defendants."
7. Moreover, Abdul Jabbar, son of Haji Muhammad Rafiq, who is the brother of the Petitioner No. 1, appeared as DW-2 and his statement was recorded on 08-12-2014. In his cross-examination he had stated that the amount deposited in the account of the Petitioner No. 1 was in the nature of a gift. This statement was not controverted by or on behalf of the.Plaintiff/Respondent No. 1. The statement of Respondent No. 1, recorded when she appeared as PW-1, is also vague. Likewise, a compromise deed was placed on record as "Mark-D", along with a written complaint made by the brother of the Petitioner No. 1 and submitted in the Police Station. The document "Mark D" i.e. The settlement deed was executed at the Police Station by the brother of the Petitioner No. 1 and the husband of the Respondent No. 1. The said document is admitted and relied upon by the Petitioner No. 1 as well as the Respondent No. 1. Perusal of the document "Mark D." reveals that the factum of oral agreement was not admitted by the petitioners, rather it was agreed that the Respondent No. 1 will settle the matter with the Petitioner No. 1 on her return. By no stretch of the imagination can the said document be construed as an acknowledgment of debt or an admission. Moreover, the learned trial Court, vide judgment dated 05-3-2015, decided Issue No. 1 in favour of the Respondent No. 1 on the ground that the facts deposed by the latter in her Examination-in-Chief were not controverted in the cross-examination and, therefore, the said facts are deemed to have been admitted.
8. In the case of Mst. Nur Jehan Begum through Legal Representatives versus Syed Mujtaba Ali Naqvi [1991 SCM R 23001, the august Supreme Court has observed and held as follows: "The principle enunciated in the commentaries and rulings is that whereon a material part of his evidence a witness is not cross-examined it may be inferred that the truth of such statement has been accepted. Statement of a witness which is material to the controversy of the case particularly when it states his case and the same is not challenged by the other side directly or indirectly, then such unchallenged statement should be given full credit and usually accepted as true unless displaced by reliable, cogent and clear evidence."
9. It is further relevant to refer to the case of Syed Muhammad Saleem versus Ashfaq Ahmad Khan and another [1989 CLC 1883, (Karachi)], wherein Justice Wajihuddin Ahmad, as he then was, has elaborately discussed the principles and law relating to the consequences arising from the failure or absence of cross-examination regarding a fact alleged/stated in Examination-in-Chief. The relevant portion is as follows: "Now, the rule merging from Section 138 of the Evidence Act, 1872 (since repealed) and its corresponding provisions in Article 133 of the Qanun-e-Shahadat, 1984 is that if a fact is alleged by a witness in his examination-in-chief and he is not cross-examined on the point such fact, remaining controverted, shall be deemed to be admitted. The rule, however,is not an infallible one.
Exception would be a case where both parties are arrayed on the same side. Another exception may arise in case where because of absence or other cause a witness is not cross-examined but in other evidence in the cabe the relevant position' is controverted. Similar will be the case where on the basis of other material on the record or absence of it such omission as to cross- examination loses weight. Phipson on Evidence, 9th Edition, page 498, also recounts some instances in which failure to cross-examination will not always amount to an acceptance of the witness's testimony and the same will include cases where "the witness has had notice to the contrary beforehand or the story itself is of an incredible or romancing character, or the abstention arises from mere motives of delicacy, as where young children are called as witnesses for their parents in divorce cases or when counsel indicates that he is merely abstaining for convenience, e.g., to save time. And where several witnesses are called to the same point it is not always necessary to cross-examine them all. In view of the foregoing principles, for which reference may also be made to Piroja. Ghadiale v. Pestonji Ghadiale 48 BLR 36, Shah Muhammad v. Fazal Bibi 1980 CLC 1540, it would seem that on account of notice to the contrary and other material on record failure to cross-examine, in the context of this case, will not lead to corresponding admission."
10. It is obvious from the above that where a party has omitted or failed to cross-examine a witness on a particular question of act stated in the Examination-in-Chief, then it would give rise to a presumption that such fact is admitted. This presumption is, however, neither absolute nor infallible. The presumption is open to exceptions. The statement made during the Examination-in- Chief and not controverted in the cross-examination, nevertheless, is to be construed in the light of the pleadings of the parties and the other evidence /produced and placed on record. Such a presumption can, therefore, be displaced by reliable, cogent and clear evidence. If there is other evidence then it will be determined on the basis of preponderance of evidence or balance of probability, whether a party upon whom the burden of proof lies has been able to discharge the same.
11. In the instant case the onus to prove issue number 1 was on the Respondent No. 1. She, inter alia, had to prove that there was an oral agreement with the Petitioner No. 1 to return/refund the amount deposited in her account after the student visa had been issued by the High Commission.
On the basis of preponderance of evidence, it is obvious that the Respondent No. 1 could not prove Issue No. 1, including the existence of an oral agreement. The absence of a cross-examination or controverting the facts deposed by the Respondent No. 1 in her Examination-in-Chief does not give rise to a presumption of admission, as the same is displaced by the assertions in the written statement and the evidence on record. The Respondent No. I 1, therefore, could not prove Issue No. 1.
It is also established law that the case of a party has to stand on its own legs and the plaintiff cannot C take advantage of the weakness of the Defendant. The learned trial Court did not consider the evidence and pleadings while deciding Issue No. 1
12. The learned Appellate Court also failed to take into consideration Paragraph-7 of the written statement and the evidence "of DW-2. It is, therefore, obviously a case of misreading and non- reading of evidence. The perusal of the judgment and decree passed by the learned trial Court also reveals that the relevant record and evidence, as mentioned herein above, was not taken into consideration.
13. For the reasons discussed above, the instant petition is allowed and the respective impugned judgments and decrees dated 05.3.2015 and 26-5-2015 are set aside. Consequently, suit of the plaintiffs/respondents stands dismissed.