1. MAHMUD HUSSAIN, J.--This appeal on behalf of the plaintiff is directed against the decision of the learned Additonal District Judge reversing that of the learned Subrodinate Judge in a suit for recovery of Rs, 4,200 on a Hand Note. The plaintiff filed the suit for recovery of the sum of Rs, 4,200 from the defendant, who is a distant relation. It is stated by the plaintiff that he advanced the sum of Rs, 5,000 as a loan to the defendant who thereupon executed a pronote on 3rd Kartick 1364 B. S. (20-10-57) and thereafter the defendant repaid Rs, 800 and accordingly the present claim of the plaintiff is for Rs, 4,200. The defendant filing a written statement denied the and asserted that he never executed any pronote in favour of the plaintiff and that the pronote produced by the plaintiff is a forged one and that he was a solvent person and that he had no betel nut business and that there was no occasion for him to borrow such a heavy amount from the plaintiff. It is stated by the defendant that the plaintiff's son Anwar Hossain was a rival candidate in an election from Bansatali Ward of Bansatali Union Council. That this defendant was defeated in that election and thereafter he filed a petition for setting aside the said election which was also rejected and this created bad blood amongst them and as a result Anwar Hossain filed this case against him by manufacturing a Hand Note to harass him. The learned Subordinate Judge after hearing the parties decreed the suit. As against that the defendant filed an appeal and the learned Additional District Judge reversed the decision of the learned Subordinate Judge and allowed the appeal and dismissed the suit. As against this the plaintiff filed this Second Appeal.
2. It appears from the record that the pronote which was filed along with the plaint as per statement in the plaint itself was subsequently not found in the record and thereafter an enquiry was directed to be made by the trial Court. When it appeared that the enquiry report was not with the record, the case was adjourned by this Court and directed the learned District Judge to inform this Court about the result of the enquiry. The learned District Judge informed this Court that the enquiry case was stayed at the instance of the defendant-respondent Md. Khorshedul Alam till the disposal of the Money Appeal No, 36 of 1962 preferred by him against the decision of the learned Subordinate Judge. It appears that after the disposal of the said appeal by the learned District Judge no step was taken for concluding the enquiry. Mr. M. H. Khondker, the learned Advocate appearing for the plaintiff-appellant submitted that the enquiry report was not essential for the disposal of the present appeal as the Court could proceed with the hearing of the case on the basis of the evidence adduced by the parties to determine the contested issue between them. Since the plaintiff did not take steps to complete the enquiry and in view of the fact that enquiry report will not in any way improve the case of the plaintiff for getting a decision in this matter, we accordingly propose to dispose of this appeal on the evidence on record.
3. Mr. Khondker submitted that this is not a proper judgment of reversal and that on the facts and circumstances of the case the suit ought to have been decreed. Mr. Khondker laid emphasis on the statement made in the plaint and the written statement filed by the defendant in order to impress upon us that the original hand note was duly filed along with the plaint and that the defendant had knowledge of the same which gets support from the fact that in the written objection filed against the application for attachment before the judgment, the defendant took the plea that he had no betel nut business at any point of time. From this Mr. Khondker wanted to say that the original hand note specifically mentioned about the betel nut business as the true copy of the hand note Exh. 1 clearly shows. Unless the defendant had seen the original hand note in the Court and came to know of its contents it would not have been possible for him to introduce the story of the betel nut business in his written objection as no mention of it was either made. In the plaint or in the application for attachment before judgment. It is no doubt true that the defendant introduced the story of betel nut business, but that alone cannot be taken to be a ground for holding that the defendant took a loan of Rs, 5,000 from the plaintiff. That may be a circumstance for the purpose of proving that the plaintiff did file such hand note along with the plaint as stated in the plaint itself.
4. Mr. Khondker further drew our attention to the fact that the defendant in his written statement did not deny in specific terms "writing by own hand" as incorporated in paragraph 1 of the plaint but in paragraph 6 of the written statement the defendant introduced the story of the fund of plaintiff's son, although that was not stated in the plaint itself.
5. Mr. M. M. Huq, the learned Advocate appearing for the respondent drew our attention to the words "statement to the effect that the deed was written is not true" in paragraph 6 of the written statement and contended that this denial is quite sufficient for the purpose of the suit, as from the necessary implication of the words which have been underlined above, it can be said that the defendant denied to have written any hand note himself. In our view that denial as has been made by the defendant in the written statement does conform with the provisions of Order VIII, rule 5 of the Code of Civil Procedure and as such we do not Ind any substance in the contention of Mr. Khondker that in the absence of specific denial the plaintiff is entitled to a decree.
6. Now leaving aside the question as to the existence of any band note we now discuss the evidence adduced on behalf of the plaintiff as to how far he has been able to prove that the defendant did take a loan of Rs, 5,000 from him and when he subsequently made a repayment of Rs, 800.
7. The plaintiff examined himself as P. W. 2 and made a statement that the defendant on execution of a hand note took a sum of Rs, 5,000 from him and he further stated that defendant repaid a sum of Rs, 8,003 out of the said sum to his son Anwar and the suit has been filed for the balance amount.
8. This witness further stated "I have been advancing loans in this way since 1343 B. S. I have khatas to show that I so advanced loans, I can produce them, if required Rs, 800 was repaid by defendant to my son Anwar and not to me. Anwar has hisab of this sum." It is to be noted that the date of repayment of Rs, 800 by the defendant was not given in the plaint itself and the plaintiff also has not stated as to when this payment was made.
9. P. W. 3 Anwar Hossain, son of the plaintiff, to whom according to the plaintiff, the said sum of Rs, 800 was paid by the defendant stated "Defendant repaid Rs, 800 to me in Ashar, 1364 B. S." The hand note on the basis of which the claim has been made is dated 3rd Kartick, 1364 B. S. So, there could not be any payment by the defendant prior to the loan. So, this statement made by P. W. 3 is wholly baseless. This P. W. 3 stated in his cross-examination "1 have not noted on any paper that the defendant repaid Rs, 800 out of the loan in question".
10. It is in evidence of the P. W. 2 that he has been maintaining account and he further stated that his son Anwar maintained an account of expenditure and in his cross-examination he stated "1 have not filed that account. Then says I do not know if any paper has been filed. My eldest son Anwar knows it........
11. Anwar keeps all my cash" and this Anwar in his cross-examination stated that he made no note about the repayment of Rs, 800. It appears that one khata has been produced and marked Exh. 8 and it is of the period subsequent to the date of the loan and the alleged repayment of Rs, 801 If the khatas that were maintained, as stated by the plaintiff were produced then it would throw light as to whether the plaintiff advanced such money to the defendant or not and in our view that would have been the best evidence for the purpose of the present suit in which the pronote filed has mysteriously been removed from the record. P. W. 2, the plaintiff does not say as to who were the persons present when the money was advanced to the defendant. It is P. W. 3 Anwar who stated "Besides myself, my father and defendant, many others were present at the time of advancing the money and writing of the hand note. Among them were my brothers Aftab, Habibullah, Afsaruddin, Shohiruddin and others." We find that Aftab and Habibullah are his brothers, but it is not known whether Afsaruddin is his brother. Aftab, Habibullah and Afsaruddin have not been examined.
12. Shohiruddin has been examined as P. W. 6 who stated "On the particular day I had been to plaintiff's to show my disease to a Fakir. I was the last man to go there ,, . , ........I saw the payment of Rs, 5,000 in hundred-rupee and ten-rupee currency notes." Neither the plaintiff nor his son P. W. 3 stated that the payment was made in hundred-rupee or ten-rupee currency notes. This witness has made certain improvement just to impress upon the Court that the payment was made in his presence. It seems to us that his statement cannot be accepted as there was no reason for him to suddenly visit that house to meet a Fakir and to witness such payment.
13. Plaintiff examined P. Ws. 1 and 5 who are practising Lawyers and their evidence are not at all material for the purpose of proving the loan. P. W. 4 is the relation of the plaintiff. He stated that he was called to witness the payment to the defendant. He stated "The presence of the Mukhtar Saheb (defendant) in the baitak khana attracted me and I sat there. Mukhtar Saheb handed over the hand note to the Haji Saheb (plaintiff). Mukhtar Saheb counted that money" and he stated further "when I reached the place where the hand note was drawn up, no outsider was present. Sohiruddin came after I reached there." It appears from his cross-examination that he is a next door neighbour of the plaintiff and visits his house very frequently and it further appears from his cross- examination that he used to pay rent to the defendant for two bighas of land which appertains to his homestead. There is a suggestion that the defendant brought a rent suit against him. So, his evidence cannot be given due weight for the purpose of fastening the liability on the defendant. It may be noted that P. W. 2 the plaintiff admitted that the defendant is his bhaira's son and it is also in evidence that they were not on good terms.
14. P. W. 7 who has deposed in this case is also a relation. His statement is that the defendant told him that he brought Rs, 5,000 as loan from the plaintiff for buying betel nut. He has no direct knowledge about the payment. It appears from his cross-examination that there was ill-feeling between him and the defendant, we find no reason why the defendant should go forward to disclose this fact of taking loan from the plaintiff to this very witness with whom he has got ill-feeling.
15. Defendant examined himself and he denied to have received any amount from the plaintiff or that he made any repayment of Rs, 800. He further denied that he had any betel nut business.
16. In view of the discussion of the evidence adduced on behalf of the plaintiff in support of the claim, we find no reason to disagree with the finding of the learned Additional District Judge. In our view when the plaintiff failed to produce the relevant khatas, according to him are lying in his possession, we are unable to hold that the defendant is liable for any amount on the basis of the alleged hand-note advanced to the defendant.
17. In the result, this appeal is dismissed. The judgment and decree of the learned Additional District Judge are affirmed. In the circumstances of the case there will be no order as to costs.
18. T. H. KHAN, J.--I agree.