The captioned appeals have been filed against the consolidated judgment and decrees passed by the learned Additional District Judge, Kotli, on 31.01.2018 whereby Suits Nos.80/12 and 94/12 for specific performance and recovery of amount filed by Mehmood Ahmed were decreed in his favour whereas a rival Suit No. 87/12 filed by appellant, herein, for rendition of accounts was dismissed for want of proof.
2. As common questions of facts and law are involved in the captioned appeals, therefore, the same are being disposed of through this single judgment.
3. Common facts forming the background of the instant appeals are that plaintiff-respondent, herein, filed a suit for specific performance pertaining to Khewat No. 37/37, Khata Nos. 218 to 222, Survey No. 1134/331 land measuring 01 Kanal 18 Marlas consisting of two stories house along-with corridor situated in Mozia Samrore Tehsil and District Kotli against defendant-appellant, herein, stating therein that the aforesaid land was transferred by the mortgagor, Muhammad Zaman Tabassum, in favour of plaintiff-Mehmood Ahmed Butt in lieu of Rs. 10000000/- (one crore) through mortgage-deed dated 22.09.2011 in alternate mortgagee-plaintiff is entitled to recover the amount of Rs. 10000000/- (one crore) from mortgagor-defendant. During pendency of the said suit, defendant-appellant, Muhammad Zaman Tabassum, filed Suit No. 87/2012 for rendition of accounts pertaining to amount of Rs. 6874056/- meanwhile, plaintiff-respondent, Mehmood Ahmed Butt, filed another Suit No. 94/2012 for recovery of amount of Rs. 5,80,00000/- against defendant-appellant Muhammad Zaman Tabassum, on 16.11.2012. The learned trial Court vide order dated 21.02.2013 consolidated all the suits and on the same day the issues were framed and parties were directed to produce evidence in support of their respective claim. After conclusion of trial Suits Nos.80/2012 and 94/2012 filed by Mehmood Ahmed Butt were decreed in his favour while cross Suit No. 87/2012 filed by Muhammad Zaman Tabassum, was dismissed for want of proof vide impugned judgment and decrees dated 31.01.2018. Feeling dissatisfied from the said judgment and decrees Muhammad Zaman Tabassum, filed the captioned appeals for setting-aside the same.
4. Raja Javaid Akhtar, the learned counsel for appellant, more or less, reiterated the grounds of appeals and argued that the suit for specific performance was filed by the respondent-mortgagee against appellant-mortgagor with regard to mortgage-deed amounting to Rs. 10 million while the appellant filed a suit for rendition of accounts pertaining to amount of Rs. 6.8 million against respondent herein. The learned counsel contended that another suit for recovery of amount of Rs.
580 million filed by respondent against appellant was just to counter the suit filed by appellant; hence, second suit is not maintainable under Order II, Rule 2 of Civil Procedure Code. The learned counsel maintained that the learned trial Court wrongly concluded the controversy and has not appreciated the evidence of the parties in its true perspective which is misconception of law. The learned counsel pleaded that the impugned judgment and decrees are result of misreading and non-reading of evidence which are liable to be set-aside. The learned counsel craved that the suit filed by appellant for rendition of accounts was wrongly dismissed by the trial Court for want of proof rather there are sufficient proof on the face of record to prove its claim. The learned counsel pressed into service that the learned Court below miserably failed to scrutinize the whole controversy and wrongly decreed the suits in favour of respondent which is not permissible under law. The learned counsel finally prayed for acceptance of appeals. In support of his arguments, the learned counsel referred to and relied upon the following case law:- i. [PLD 1978 Lahore31]; ii. [PLD 1978 Lahore 771]; iii. [1992 CLC Peshawar 1915]; iv. [1992 CLC Karachi 2524]; v. [1997 MLD Karachi 2835]; vi. [1999 MLD SC (AJ&K) 35]; vii. [PLD 2004 Peshawar 68]; viii. [2004 YLR Lahore 1113]; ix. [PLD 2005 (AJ&K) 15]; x. [PLD 2005 Peshawar 19]; xi. [2008 SCR 46]; xii. [PLJ 2001 Lahore 461]; and xiii. [PLD 2013 High Court (AJ&K) 1].
5. Sheikh Nouman Akhtar, the learned counsel for respondent while controverting the arguments of the learned counsel for appellant zealously argued that judgment and decrees passed by the learned Court below are in accordance with law while appreciating the evidence of the parties in its true perspective. The learned counsel emphasized that suits for specific performance and recovery of amount were filed by respondent on different cause of action and there is no relevancy between that suits, hence, Order II, Rule 2 of Civil Procedure Code is not applicable in the case in hand. The learned counsel added that no misreading and non-reading of evidence has been brought on record, hence, the learned Court below committed no illegality while recording the impugned judgment and decrees. The learned counsel defended the impugned judgment and decrees with full force and prayed for dismissal of appeals.
6. I have heard the respective arguments advanced by the learned counsel for the parties at bar and perused the available record of the case carefully.
7. Coming to the impugned judgment and decrees passed in Civil Suits No. 94/2012 filed for recovery of amount of Rs. 5,80,00000/-and No. 87/2012 for rendition of accounts matter in issue in Appeals Nos.32/2018 and 33/2018, it is to be seen as to whether the trial Court was justified to grant a decree pertaining to recovery of amount of Rs. 5,77,70,000/- in favour of respondent or not? It is relevant to mention here that in order to prove the claim in Suit No. 94/12, plaintiff-respondent, produced documentary evidence i.e. Exh."PA" to Exh."Pl" there are nine cheques given by the defendant-appellant, herein, to the plaintiff-respondent, herein, in different dates, Exh."PK-L" an affidavit dated 29.05.2010, Exh."PM" an affidavit dated 10.10.2008, Exh.''PN" an affidavit dated 04.12.2010, Exh."PO" agreement dated 12.02.2010 so agreed by the defendant-appellant with plaintiff-respondent with regard to payment of amount on different dates, Exh."PQ" a copy of report of inquiry officer, Exh."PQ" a certified copy of suit titled Israr Rathore v. Muhammad Zaman Tabbssum, Exh."XEE" written statement and Exh."PA-BB" verification issued by Muhammad Riaz Mughal DSP. In support of his version, plaintiff-respondent also produced witnesses namely Zaffar Iqbal, Abdul Qayyum, Abdul Shakoor, Abdul Majid and he also entered into witness box and got recorded his statement. On the other hand, defendant-appellant, in support of his claim, produced documentary evidence, Exh."DAA" a certified copy of suit titled Muhammad Shabbir v. Mehmood Ahmed and another, Exh."DAB" a copy of power of attorney executed in favour of plaintiff- respondent by defendant-appellant on 20.05.2011, Exh."DAC' a certified copy of written arguments filed in case titled The State v. Muhammad Zaman Tabbassum, Exh."DAD" a copy of power of attorney executed in favour of Israr Ahmed Rathore by defendant-appellant on 07.09.2011, Exh."DAG" verification of Bank concerned with regard to confirmation of cheques, Exh."DAQ" Ikhtatami report, Exh."DAH" and Exh."DAT' Bank receipts and Exh."DZ" inventories. In support of his version, defendant- appellant produced witnesses namely Muhammad Younis, Israr Rathore, Imdad Ali, Chaudhary Mehboob Hussain, Javaid Iqbal Officer National Bank Ltd, Aftab Hussain Shah, Muhammad Waqas Tabassum, Muhammad Hanif Head Constable, Ilyas Latif Constable, Muhammad Aslam Hajazi, Muhammad Riaz Mughal DSP City Kotli, and defendant-appellant himself entered into witness box and got recorded his statement. After completion of defendant-appellant's evidence, in rebuttal the plaintiff-respondent also produced Mushtaq Ahmed Malik as witness in evidence.
8. The important aspect of the matter is that when in Para No. 3 of written statement filed by defendant-appellant in a suit for recovery of amount of Rs. 5,80,00,000/- it has been admitted that appellant had borrowed money of Rs. 77792291/- from respondent in different times whereas Suit No. 87/2012 filed by Muhammad Zaman Tabassum also revolves round Suit No. 94/2012 pertaining to the payment of borrowed money along-with additional amount of Rs. 6874056/-. For proper appreciation of the matter Para No. 3 of written statement is hereby reproduced as under: {{URDU TEXT}} According to the above quoted para of written statement, the stance of the defendant-appellant is that he had returned the borrowed money to the plaintiff-respondent, hence, now the matter in issue is not that defendant-appellant had borrowed money from the plaintiff-respondent rather the pivotal point is yet to be resolved as to whether the defendant-appellant had paid the borrowed money to the plaintiff-respondent? Under the relevant provisions of law, the burden of proof was on shoulders of the defendant-appellant to prove that he had paid the borrowed money to plaintiff-respondent. Before discussing the evidence of plaintiff-respondent, here I would like to discuss the evidence produced by the defendant-appellant in support of his claim.
Witness Muhammad Younis has got recorded his statement on 19.11.2013 wherein he deposed that the house of defendant-appellant is situated in Kotli Sadiqabad. Defendant-appellant also gave power of attorney of the house in favour plaintiff-respondent. Israr Ahmed Rathore, interested to buy the said house for which the transaction was in progress and defendant-appellant revoked the said power of attorney and with the consent of both appellant and respondent, the deal was fixed with Israr Ahmed Rathore then Muhammad Zaman Tabassum executed power of attorney in favour of Israr Ahmed Rathore. This deal was likely to be done by Imdad Ali Rathore. In his presence neither any punchayat was solemnized nor any give and take was made. From the said statement, it is not apparent that defendant-appellant had paid any amount to plaintiff-respondent.
Witness namely Israr Rathore appeared into witness box on 03.12.2013 and deposed that in presence of witnesses, he had paid Rs. 86,50,000/- to plaintiff-respondent on behalf of defendant- appellant because he purchased the house of defendant-appellant while during cross- examination he admitted that he filed a suit titled Muhammad Israr Ahmed Rathore v. Muhammad Zaman Tabassum, which is subjudice before Additional District Judge, Kotli. From perusal of plaint it reveals that an agreement to-sell pertaining to land measuring 1 Kanal along-with house was executed in favour of Israr Ahmed Rathore by Muhammad Zaman Tabassum--appellant in lieu of Rs. 1,10,00,000/-. On the basis of said agreement-to-sell, Israr Ahmed Rathore, filed a suit for specific performance against appellant wherein Para 2 he specifically mentioned that he had paid the amount of Rs. 1,10,00,000/- to Muhammad Zaman Tabassum-appellant. When Muhammad Zaman Tabassum was summoned who appeared before the Court and filed written statement (Exh.XEE) wherein para-3 of written statement, it has specifically been mentioned by defendant- appellant that Israr Ahmed Rahtore had not paid a single penny on the basis of agreement--to- sell. He also alleged that agreement-to-sell is a forged document. Thus, it is very interesting element of the case that according to Exh."PQ" i.e. plaint, it has categorically been motioned in it by Israr Ahmed Rathore that he had paid the amount of Rs. 1,10,00,000/- to defendant-appellant and he had not mentioned in it that he had paid the amount of Rs. 86,50,000/- to plaintiff-respondent.
In response thereof, defendant-appellant, Muhammad Zaman Tabassum, filed written statement (Exh."XEE") wherein he dynamically stated that Israr Ahmed Rathore had not made payment of single penny to him, however, for the sake of arguments, if the payment was made, the defendant- appellant should have mentioned in written statement that Israr Ahmed Rathore had paid borrowed money to plaintiff-respondent but it has not been mentioned that Israr Ahmed Rathore had paid any amount to the plaintiff-respondent on his behalf. So, after perusal of the pleadings of the parties, it can safely be concluded that statement recorded by Israr Ahmed Rathore itself negates the version of defendant-appellant.
Witness namely Imdad All in examination-in-chief deposed that in his presence both Israr Ahmed Rathore and Muhammad Zaman Tabassum agreed for transaction of the house in lieu of Rs.
86,50,000/-. He further stated that Israr Ahmed Rathore on behalf of the defendant-appellant paid the said amount to plaintiff-respondent. As stated earlier, according to version as has been taken by defendant-appellant in written statement (Exh."XEE"), that he has not made any payment.
During cross-examination, the said witness also affirmed the execution of Punchayat-Nama Exh.
"PQ" as correct and further stated that he is marginal witness of said Punchayat Nama. This witness instead of making well-built version of defendant-appellant more strengthens claim of plaintiff- respondent.
Witness Ch. Mehboob Hussain who is also a witness of Punchayat admitted that plaintiff- respondent demanded money given by him as borrowed from defendant-appellant. The said witness did not utter single word with regard to payment of borrowed money.
Witness Javaid Iqbal also reiterated the same version as stated by above witness.
Aftab Hussain Shah stated that Jirga was solemnized at Jammu House who also admitted the presence of witness Ch. Mehboob Ahmed and others and further deposed that plaintiff- respondent demanded the borrowed money time and again whereas defendant-appellant was seeking time for making payment. He specifically deposed that it is correct that Muhammad Zaman Tabassum executed different documents in favour of Mehmood Ahmed Butt for payment of borrowed money in different occasions. As usual this witness did not support the version of defendant-appellant while the said witness strengthens the claim of plaintiff-respondent.
Muhammad Waqas Tabassum, Muhammad Hanif Head Constable, Ilyas Latif Constable and 'Muhammad Riaz Mughal DSP City Kotli are witnesses of inventories (Khatajat).
10. It is pertinent to mention here that when inventories (Khatajat) were confiscated in FIR Illat No. 294/2012 in offence under Section 489-F, A.P.C. by Riaz Mughal, DSP as an Investigating Officer, through recovery memos. dated 21.09.2012 and thereafter the said inventories were not available on police record upon which this Court while deciding Civil Miscellaneous No. 07/2012 vide order dated 21.04.2015, directed Judicial Magistrate to hold an inquiry and ascertain as to where the confiscated registers are? The inquiry officer after conducting inquiry submitted its report on 26.01.2017. It appears that police officers DSP Riaz Mughal and DSP Karamatullah appeared before the inquiry officer and got recorded their statements wherein it has been admitted that inventories (Khatajat) are not available on the police record but the fact remains that how and why DSP Riaz Mughal, under what authority of law has attested the photostat copies whereas the inquiry officer categorically mentioned that the record which was placed on record is ambiguous.
11. As the defendant-appellant mainly placed reliance upon these inventories, hence, under law to prove contents of relied documents, claimant is bound to produce primary or secondary evidence as per Chapter V of the Qanun-e-Shahadat Order, 1984. Documents creating financial liability have to be attested by two witnesses, therefore, in order to prove inventories (Khatajat), he has to call at least two attesting witnesses and if the document is not proved in accordance with law, it has to be excluded from consideration. Furthermore, under Article 87 of Qanun-e-Shahadat Order, 1984 official notes, correspondence and copies are not admissible in any case, thus, photocopies of inventories (Khatajat), do not have legal value.
Witness Aslam Hajazi failed to explain that when and where or in whose presence, the borrowed money was paid to the plaintiff-respondent. He also clarified that in his presence defendant- appellant has not paid any amount to plaintiff-respondent.
12. As stated earlier, defendant-appellant had not denied in his written statement that he had not borrowed the money amounting to Rs. 77792291/- from plaintiff-respondent but he specifically alleged that he returned the borrowed money to the plaintiff-respondent. In his Court statement, he deposed that from the years 2008 to 2009 in different occasions, he borrowed money from plaintiff-respondent. He further stated that he borrowed money early in the morning and returned the amount on same day. In examination-in-chief, he deposed that he has paid borrowed money along with additional amount of Rs. 68,74,056/- to plaintiff-respondent. A deep perusal of statement of the defendant-appellant shows that he has not denied with regard to documentary evidence which has been produced by the plaintiff-J respondent in support of his claim, hence, it is useful to reproduce the relevant portion of statement of the defendant-appellant, which reads as under: {{URDU TEXT}}
13. Exh. "PA" to Exh. "PI", there are nine cheques given by the defendant-appellant, herein, to the plaintiff-respondent, herein, in different dates. According to Exh."PK-L" i.e. an affidavit dated 29.05.2010, it has been affirmed in Para No. 1 by the appellant that he borrowed money from respondent amounting to Rs. 3,00,00,000/- and in para 3 it has been affirmed that on demand of respondent he is liable to be paid the said amount within a period of three months, failing which, the respondent will be at liberty to proceed in accordance with law. As per Exh. "PM" i.e. an affidavit dated ant, herein, borrowed money of Rs. 10.10.2008, it appears that appellant, 30,00,000/- from respondent. Exh.".PN" i.e. an affidavit dated 04.12.2010, the appellant admitted in para 1 of affidavit pertaining to the borrowed money of Rs. 2,50,00,000/- from respondent and for the payment of the same, he issued Cheque No. 06919602 amounting to Rs. 10000000/- (one crore) for encashment on 05.01.2011, Cheque No. 06919603 amounting to Rs. 10000000/- (one crore) for encashment on 18.01.2011 and Cheque No. 06919604 amounting to Rs. 50,00,000/- on 18.01.2011 but when these cheques were presented for encashment in the Bank concerned which were returned to the respondent due to insufficient credit. Although defendant-appellant produced verification of concerned Bank through which the said cheques were not presented before the Bank yet from perusal of para 4 of plaint, it has specifically been mentioned that plaintiff-respondent presented cheques given by defendant-appellant in the concerned Bank. This stance of the plaintiff- respondent substantiates from his Court statement recorded on 03.04.2013 that these cheques were presented by him in the concerned Bank where it was verbally informed by bank official that due to insufficient credit, the payment could not be made while plaintiff-respondent being illiterate person has no knowledge how to obtain official verification in this regard. It is relevant to mention here that both the parties executed an agreement (Punchayat Nama Exh."PO") on 12.02.2010 for mechanism of payment of the outstanding amount for which schedule of payment pertaining to different dates was also mentioned in it. It is also evident from the record that both the parties in presence of the witnesses placed reliance on Abdul Qayyum Malik and it was agreed that for payment of the said amount, defendant-appellant will issue cheques in the name of Abdul Qayyum Malik, who, after encashment, will pay to the respondent and thereafter two cheques amounting to Rs. 50,00,000/- and Rs. 47,70,000/- were issued in the name of Abdul Qayyum Malik.
When these cheques were presented for encashment on the date so agreed by the parties which were dishonoured due to lack of money whereupon an FIR No. 694/2012 in offence under Section 489-F, A.P.C. was registered on 03.09.2012 against appellant at Police Station, Kotli on the instigation of Abdul Qayyum Malik. Defendant-appellant has admitted in his Court statement that he has signed all above-mentioned documents.
14. After detailed scrutiny of documentary as well as oral evidence produced by the defendant- appellant, it can safely be concluded that the entire evidence of defendant-appellant is self- contradictory and highly discrepant, therefore, defendant-appellant has miserably failed to prove that he has paid the borrowed money to plaintiff-respondent whereas plaintiff-respondent proved his case through cogent and reliable evidence.
15. As far as the objection raised by the learned counsel for the appellant that Suit No. 94/2012 was not maintainable under Order II, Rule 2 of Civil Procedure Code is devoid of any force because Suits No. 80/12 and Suit No. 94/12 were filed on different cause of action by plaintiff-respondent, hence, this objection carries no weight and is hereby repelled.
16. It is relevant to narrate here that defendant-appellant submitted applications for granting permission to produce witness Abdul Shakoor. Mughal as additional evidence along-with other applications for summoning File No. 13 titled The State v. Zaman Tabassum pertaining to Ikhtatami report. From deep perusal of record, it transpires that defendant-appellant wanted to produce Abdul Shakoor Mughal son of Muhammad Yaqoob Mughal as additional witness whereas the said witness was also produced by plaintiff-respondent whereupon the statement of the said witness was fully cross-examined by the defendant-appellant's side. The applications for summoning File No. 13 titled The State v. Zaman Tabassum pertaining to Ikhtatami report have no substance because Ikhtatami report was also available on record as Exh.DAE". It seems from the perusal of applications that the same appear to have been filed just to prolong the case one way or on the other pretexts, hence, the said applications are hereby rejected.
17. Adverting to Appeal No. 34/2018 filed for setting-aside the judgment and decree passed in Suit No. 80/2012 titled Mehmood Ahmed Butt v. Muhammad Zaman Tabassum, the claim of plaintiff- respondent in the captioned suit is that the decree for specific performance pertaining to Khewat No. 37/37, Khata Nos.218 to 222, Survey No. 1134/331 land measuring 01 Kanal 18 Marlas consisting of two stories building along-with corridor situated in Mozia Samrore, Tehsil and District Kotli on the basis of mortgage-deed dated 22.09.2011 may be granted and defendant-appellant may be directed to execute sale-deed of the aforesaid land/building and handover the possession in alternate the plaintiff-respondent is entitled to recover the amount of Rs. 10000000/- (one crore) from defendant-appellant. In response thereof, defendant-appellant filed written statement on 26.01.2013 wherein he admitted the execution of mortgage-deed. For ready reference, Para No. 4 of written statement is hereby reproduced as under: {{URDU TEXT}}
18. After perusal of the above quoted para of written statement, it transpires that defendant- appellant has not denied with regard to execution of mortgage-deed dated 22.09.2011 (Exh."PJ") whereas the said deed is registered document having presumption of truth in the eye of law executed between the parties in presence of the witnesses. For proper appreciation of the matter, here I would like to reproduce the mortgage-deed dated 29.09.2011 (Exh."PJ") in the following words: {{URDU TEXT}}
19. It is pertinent to mention here that the aforesaid mortgage-deed the defendant-appellant in written statement had not denied with regard to execution of said deed. It is further relevant to narrate here that defendant-appellant in his Court statement has not denied with regard to execution of mortgage-deed in favour of plaintiff-respondent. The version of mortgager that mortgage-deed was executed in favour of mortgagee on compassionate ground because mortgagee had to return the borrowed money with interest and for the satisfaction of creditors the aforesaid deed was executed in favour of mortgagee has no substance because this version has not been proved through any convincing evidence. It is also evident from revenue record that the house consisting of two stories mentioned in mortgage-deed did not situate in Survey No. 1134/331 measuring 1 Kanal 18 Marlas, so, it is also admitted fact that possession of the said house was not delivered to the mortgagee.
20. For determination of real controversy between the parties, the question arises as to whether the trial Court was justified to grant a decree for recovery of Rs. 1,00,00,000/-? To meet this point whether the mortgage-deed Exh. "PJ" is simple mortgage or usufructuary mortgage? Under Section 58 of Transfer of Property Act, if possession of mortgage property was delivered to the mortgagee then the mortgage-deed is called usufractuary mortgage. In case of usufactuary mortgage, the mortgagee cannot file a suit against mortgagor for recovery of money whereas if possession of mortgaged property was not delivered to the mortgagee then mortgage-deed is called simple mortgage. In the instant case, it is an admitted fact between the parties that possession of mortgaged property was not delivered to the mortgagee, therefore, it can safely be concluded that Exh. "PJ" is simple mortgage-deed. Under the relevant provisions of law where mortgage-deed was executed and possession was not delivered to mortgagee and it has expressly been agreed to repay the mortgaged money as per specified date. In case of default, mortgagee was given two options, (i) either to recover the money or (ii) to get possession of property in lieu of principal money, hence, the learned trial Court was quite competent under statutory provisions of law to grant a decree amounting to Rs. 1,00,00,000/- in favour of the plaintiff-respondent.
21. It is worthwhile to mention here that narrative brought before the Court by the defendant- appellant in Suits No. 80/12 and No. 94/12 appears to have not been proved through any reliable evidence even by his own conduct. If it was so, then he should have filed a suit before the competent Court of law for cancellation of instrument as provided under Section 39 of Specific Relief Act but he failed to do so. Citations placed reliance by the learned counsel for the appellant in support of his claim are not helpful and are not applicable in the case in hand.
22. In this backdrop of the case, the learned trial Court rightly decreed the suits in favour of plaintiff-respondent after appreciating the entire evidence produced before it by parties while dismissing the suit filed by appellant for rendition of accounts, hence, the impugned judgment and decrees are in right direction, which warrant no legal interference by this Court.
23. The logical inference of the above discussion is that finding no force in the captioned appeals, the same are hereby dismissed with no order as to costs. A copy of this judgment shall be annexed along with the other relevant files.