SHAKEEL AHMAD, J.- Through the instant Revision Petition under section 115 CPC, the petitioner calls into question the judgment and decree dated 22.9.2006 passed by the learned Additional District Judge-II, Takhtbai, whereby he accepted the appeal and set aside the judgment and decree dated 28.3.2006, passed by the learned Civil Judge-III, Takhtbai dismissing the suit of the respondents and thereby granted the decree for recovery of Rs.26,494/-.
2. Brief facts of the case are that the respondent/plaintiff filed a suit for recovery of Rs.26494/- with 14% annual profit against the petitioner/defendant, stating therein that, he took the policy in the year 1989, and deposited Rs.38694/- with the State Life Insurance Corporation under policy No.505042633, he obtained a loan of Rs.12200/- from the corporation. It was further asserted in the plaint that respondent-plaintiff entered into a premium of Rs.one lac for 10 years due to some reasons the plaintiff could not carry on his premium, and submitted an application to the corporation for stoppage of the policy, and in pursuance thereof, he issued notices on 14.9.1995 and 21.6.2003, respectively to the corporation for discontinuation of his policy. The defendants were asked to pay Rs.26494/- after deduction of the loan from the total amount (Rs.38694/-), deposited by the respondent-plaintiff, but in vain, which necessitated to file the suit for recovery. After service of summons, the petitioner-defendant put their appearance, contested the suit by filing written statement raising therein many legal and factual objections, and denied the claim of the respondent-plaintiff. From the divergent pleadings of the parties, 07 issues were framed and parties were directed to produce their evidence.
3. In order to prove his claim the respondent appeared himself as PW-1 and produ ced payment receipt Ex.PW 1/2 to Ex.PW 1/7, AD card and receipt of notices Ex.PW 1/8 and Ex.PW 1/9. On the other hand, Salam Gul, Representative of the State Life Insuranc e Corporation was examined as DW-I. He produced the policy Ex.DW 1/1, the loan application submitted by the respondent EX.DW 1/4, sanction order of loan Ex. DW 1/3, the application for dis-continuation of policy Ex.DW /4 and its receipt as DW 1/5. Calculation of respondent's account Ex.DW 1/6. Letter No.95 Ex.DW 1/7. On the conclusion of trial, vide judgment dated 28.3.2006 the suit was dismissed by the learned Civil Judge-III, Takhtbai. Not contended with the same, the respondent filed appeal before the learned Additional District Judge-II, Takhtbai, which was accepted and vide judgment dated 22.9.2006 a decree for recovery of Rs.26494/- was passed in favour of the respondent without interest, holding that the loan of Rs.12200/- was given to the petitioner as interest free. Not contended with the judgment and decree of the learned appeal court, the petitioner filed the present petition.
4. It has been argued by the learned counsel for the petitioner that the impugned judgment and decree passed by the learned appellate court is the result of misreading and non-reading of evidence on the record, therefore, the same is liable to be set aside; that the judgment passed by the learned trial court is based on proper appreciation of evidence on record which needs no interference and is liable to be restored.
5. The respondent present in person, sought permission to argue the case himself on the ground that he is unable to engage a counsel due to poverty. Permission was granted
6. The petitioner submitted that he had deposited Rs.38694/- in pursuance of the policy bearing No.505042633, and obtained a loan of Rs.12200/- in the year 1989 and due to his poor financial condition he could not carry on the policy and submitted application for its discontinuation and payment of remaining amount after deduction of loan, and prayed for dismissal of the revision petition.
7. Arguments heard and record perused with the assistance of the learned couns el for the petitioner and the respondent.
8. Perusal of the record reflects that DW-1 himself admitted in his statement that amount deposited by the respondent-plaintiff under the policy has arisen to Rs.90213/- which is also established through Ex.DW 1/6. The contention of the petitioner-defendant that the petitioner himself opted to shift from Option-A to Option-B was upon the defendant, but he failed to discharge his obligation through cogent evidence. Perusal of the record further reveals that the learned trial court erred to deduct an amount of Rs.90213/- from the amount Rs.92007/- worked out by the defendant-petitioner allegedly outstanding against the plaintiff-respondent. The petitioner had neither taken the plea of set off in his written statement nor specifically stated that loan outstanding against the respondent would be recovered with interest from the amount deposited by him, therefore, the petitioner could not be allowed to set up the plea which was not taken in his written statement. In this respect reliance can well be placed on the case reported as Muhammad Rafiq & others Vs. Muhammad Ali & others (2004 SCMR 704), wherein it was held as under: Order-VIII, Rule-2 CPC. Plea not raised in written statement---Effect---Defendant could not be allowed to set up a plea, which had never been pleaded through written statement Reference may also be made on the cases reported in CLC 2002 Peshawar 1517, 2001 MLD 826 and 1996 SCMR 336.
10. For what has been discussed above, I hold that the judgment and decree passed by the learned appeal court is based on proper appreciation of evidence on record and the learned trial court committed error by deducting alleged amount Rs.90213/- from Rs.92007/- worked out by the petitioner/defendant in the absence of plea of set up in their written statement. I find no illegality or irregularity in the impugned judgment, therefore, the same is maintained and the revision petition being devoid of force is hereby dismissed.