AMIN-UD-DIN KHAN, J. Through this single judgment I intend to decide the above captioned R.F.A. as well as R.F.A. No.121 of 2013 as both the appeals have arisen against the same judgment & decree.
2. The facts are that the plaintif f/respondent No.1 filed a suit for recovery of Rs.12,00,000/- under Order XXXVII of the CPC on 24.08.2005 against the appellants as well as respondent No.2 on the basis of a joint promisory note and receipt as well as mortgage deed dated 30.03.2004 with 1% mark up till realization of loan amount. After service the appellants/defendants No.1 and 2 filed an application for leave to defend and contested the suit. Initially the suit was ex-parte decreed vide judgment & decree dated 27.06.2006. The appellants/defendants No.1 and 2 filed an application for setting aside the ex-parte judgment & decree, which was accepted and ex-parte judgment & decree was set-aside and suit was restored. Then the appellants/defendants filed application for leave to defend on 04.04.2008. The reply was filed, same was contested. The leave was granted vide order dated 04.12.2009.
Learned trial court was pleased to frame the following issues on 04.05.2010:-
1. Whether the plaintif f is entitled to recover Rs.12,00,000/- along with profit @ 1 % per month on the basis of pronote dated 30/03/2004 against the total loan? OPP
2. Whether the plaintif f did not pay any amount to the defendants.? OPD
3. Whether the thumb impression of the defendants were procured upon the blank papers by playing fraud through misconception? OPD
4. Whether the plaintif f has no cause of action? OPD
5. Whether the plaintif f has not come to the court with clean hands? OPD
6. Relief.
Both the parties produced their oral as well as documentary evidence in support of their versions. The suit was decreed by the learned trial court vide judgment & decree dated 04.12.2012. Hence, the instant appeal.
3. Learned trial court refused to grant the decree of 1% profit. Therefore, the connected appeal has been filed by the plaintif f for grant of profit.
4. I have heard the learned counsel for the parties at full length and also gone through the record minutely with their able assistance.
Learned counsel for the plaintif f/respondent No.1 has relied upon the judgme nts reported as "MUHAMMAD SATTAR and others versus TARIQ JAPAID and others" (2017 SCMR 98), "MUHAMMAD ANW AR versus MUHAMMAD ASLAM and others" (2012 SCMR 345), "NADEEM KAMRAN and another versus WASEEM AKHT AR TAREEN" (2011 CLD 533 ) and "CHIRAGH (deed) through LRs versus IBRAHIM and others" (2010 SCMR 1976 ).
5. The case pleaded by the appellants/defendants No.1 and 2 was that the plaintif f with the connivance of defendant No.3, who is nephew of defendant No.1 as there was some deal of purchase of Toyota Wagon, defendant No.3 procured the signatures and thumb impressions upon plain papers for preparing a document of surety as well as upon the stamp paper . When leave was granted to consider the stance put forth by defendants No.1 and 2 and the onus of issue No.1 was placed upon the plaintif f/respondent No.1, then it was the responsibility of the plaintif f to prove the execution of promisory note as well as the receipt. The promisory note is upon a blank paper , it is not upon a printed form which is usually used for a promisory note. Same is the position of receipt. Both these documents are on separate papers. The signatures and thumb impressions of defendants No.2 and 3 are upon the revenue receipts as well as on the lower part of the middle half of the paper, whereas the alleged thumb impression of Mst. Sarwari Begum is beneath the thumb impression and signatures of Muhammad Yousaf. When the execution of the receipt was denied by the defendants, it was the responsibility of the plaintif f to prove the execution of these documents and payment of amount of Rs.12,00,000/- to the executant of these documents. The plaintif f opted not to produce the scribe of the documents. The plaintif f himself appeared as PW-1 on 01.03.2006 after setting aside the ex-parte judgment & decree. It was settled as per learned counsel for the parties that the statement in chief earlier recorded will remain in the field. The plaintif f produced Haji Muhammad Tufail as PW-2 and statement of Muhammad Saleem the other marginal witness was recorded on 01.03.2006 as PW-3 on the same day, whereas Muhammad Tufail was given up on the statement of learned counsel for the plaintif f that he is in Saudi Arabia and he cannot be produced for cross-examination. PW-4 is Qari Abdul Hadi who is not the marginal witness to the document, whereas the third marginal witness of receipt is Zahid Niaz, who was not produced in evidence. In this view, the only statement of plaintif f is in support of the receipt Ex.P-3. It is pertinent to mention here that on 08.04.2006 the documentary evidence was produced during the statement of Ch. Iqbal Ahmad Khan Advocate, counsel for the plaintif f. Ex.P-1 is promisory note, Ex.P-2 is mortgaged deed, Ex.P-3 is receipt of post office sending a legal notice, Ex.P-4 is an acknowledgement post card and Photostat copies of identity cards and the sale deed etc were produced as Mark. The receipt of payment was not got exhibited by the plaintiff as the receipt which is available on the file and Ex.P-1 the promisory note are on separate papers. The statements in chief of all the witnesses of the plaintiff including the plaintiff recorded on 01.03.2006 having no reference of the promisory note and the receipt. Needless to observe that at that time the said documents were not produced in evidence. Subsequently statements in chief recorded on 01.03.2006 of the witnesses, as per learned counsel for the plaintiff, were kept intact and no fresh statement was offered by the plaintiff. In this view, none of the plaintiff and witnesses has identified his signatures and thumb impressions or the signatures and thumb impressions of the defendants upon the promisory note and mortgage deed. Needless to observe that the receipt was never got exhibited as noted supra.
6. Furthermore, 1% interest has been claimed by the plaintif f. When the promisory note Ex.P-1 is read along with mortgage deed Ex.P-2, it becomes clear that Ex.P-1 is not a negotiable instrument. In this context, reliance can be placed upon the judgment reported as "LIAQA T ALI KHAN versus MST. SHAF AQ UROOY" (2017 CLD 35).
Paragraph No.18 of the judgment is as under:- "Interestingly, the disputed promissory note does not withstand the negotiability test. Liaqat Ali Khan, in addition to the undertaking rendered to pay Mst. Shafaq urooj, also undertook to transfer 13 marlas of land in favour of Ikram Khan son of Saadullah Khan. This stipulation by Liaqat Ali Khan raises serious questions about the intention of Liaqat Ali Khan or for that matter Mst. Shafaq Urooj to consider the said document to be negotiable.
The addition of this specific stipulation would clearly take the said instrument outside the scope of it being negotiable within the contemplation of section 13 of the Act."
When the interest has been introduced in the light of judgment of this Court, the document does not remain a negotiable instrument. I take light from the judgment reported as "SHEHZAD AKHTAR versus MUHAMMAD SALEEM SHAD QURESHI and another" (2018 CLD 28). When any other condition is attached with a promissory note, it brings the same out of the ambit of negotiable instrument. I am fortified by the judgment reported as "RASHEED UR REHMAN KHAN versus Mian IQBAL HUSSAIN" (PLD 2006 Supreme Court 418). I quote the operative part from paragraph No.5 of the judgment as under:- "In case the pro note along with the intention of the parties are put in a juxtaposition, then it is crystal clear that document in question is not pro note in terms of the provisions of Negotiable instru ments Act. Condition prescribed in the document to forego his right of appeal brings the document outside the purview of the provisions of Negotiable Instruments Act and falls under the provisions of Contract Act automatically , meaning thereby despite the fact that it was written on the pro forma of pro note but due to the condition in the document in question had changed its status from pro note into an agreement to contract."
Further I am fortified by the judgment of Allahabad High Court reported as "Pandit Sushil chander Chaturvedi v.
Wali Ullah and others" (A.I.R. 1941 Allahabad 158). The relevant portion of the judgment is as follows:- "According to the plain language of the two statutes it is obvious that a document which contains a promise to pay on a contingency will not be treated as a promissory note for the purposes of the Negotiable Instruments Act but it may be regarded as such for the purposes of Stamp Act."
On the same issue reliance is placed upon "Sarju Sahu and others v. Sukhi Lal and others" (A.I.R. 1924 Patna 96).
The relevant paragraph is reproduced as under:- "The document in question, however, is not a negotiable instrument. It is not a promissory note under S. 4 of the Negotiable Instruments Act, inasmuch as there is no unconditional term to pay a fixed sum of money. The document is in the shape of a request to the plaintiff to pay the defendants Rs.500 which the defendants would pay with interest. This was, therefore, a conditional contract."
7. It is further important to note that when defendant No.1 Mst. Sarwari Begum appeared in the witness box as DW- 1 and she produced defendant No.2 Muhammad Yousaf as DW-2, the promisory note Ex.P-1 or Ex.P-3 were never confronted or put to them in cross-examination by the plaintif f and the portion of statement of these witnesses that they received nothing and except as a surety they have put their thumb impressions upon plain papers and stamp papers were also not controverted in the cross-examination and their denial of receipt of money was also not cross- examined. I am conscious of the fact that under section 118 of the Negotiable Instrument Act, 1881 presumption is attached to a negotiable instrument but same is rebuttable. When the plaintif f could not produce the promisory note and the mortgaged deed, needless to observe that the receipt was never produced in the evidence. It was the responsibility of the plaintif f to prove the execution of documents in accordance with law on the basis of standard declared by this court as well as the august Supreme Court for proving a document which is disputed between the parties. The case law referred to by the learned counsel for the respondents is not applicable to the facts of this case, therefore, not helpful for the respondents.
8. The scrutiny of evidence noted supra shows that the plaintiff miserably failed to prove the receipt of money by the appellants/defendants as well as respondent No.2 of the instant appeal but there was no question of grant of decree in their favour. Even otherwise when there was mortgage deed also, it was not a case to be tried under Order XXXVII of the CPC when business transaction was pressed by the plaintiff/respondent No.1.
9. The resume of above discussion is that R.F.A.No.53 of 2013 is allowed and the impugned judgment & decree dated 04.12.2012 passed by the learned Additional District Judge, Lahore decreeing the suit filed by the plaintif f/respondent No.1 are set aside. Whereas R.F.A.No.121 of 2013 filed by respondent No.1/plaintif f is dismissed. The result would be that the suit for recovery of Rs.12,00,000/- filed by respondent No.1/plaintif f shall stand dismissed with costs throughout.