CH. MUHAMMAD IQBAL, J.----Through this Regular First Appeal the appellant has challenged the judgment and decree dated 20 05.2019 passed by the learned District Judge, Lahore whereby the suit for declaration and permanent / mandatory injunction of the appellant was dismissed.
2. Brief facts of the case are that the appellant/plaintif f was holding policy No.50/6412102-7 since 30.06.1995 and has paid the premium upto 30.06.2005. During the continuity of the said policy the appellant obtained a loan facility from the respondent amounting to Rs.3,00,000/- on 12.09.2000 with the settled schedule of repayment through installments which remained unpaid till 2003. The appellant allegedly paid Rs.2,00,000/- in the first week of June, 2003 to Raees Akhtar , the Area Manager of the respondent corporation for onwards transmission to the State Life Insurance Corporation for adjustment qua the loan amount against a receipt that the appellant also paid an amount of Rs.1,50,000/- to the said Area Manager as (liquidation of full and final liability) toward the loan amount who issued a receipt. Thereafter two furthe r installments of premium were paid on 17.06.2003 and three more installments were deposited on 17.09.2003, 23.11.2004 and 03.12.2005 on the assurance that there was nothing outstanding against the loan. On 19.01.2 006, the appellant approached the respo ndent to inquire about his policy when he was informed, regarding auto surrender of his policy on 30.03.2003 and an amount of Rs.5,42,1000 with markup was shown to be outstanding against him uptill 30.01.2006, which necessitated filing of the suit. The respondent /defendant filed contesting written statement denying the receipt of repayment of loan amount. The plaint was returned to the appellant for presentation before proper forum vide order dated 18.04.2008 by the learned Civil Judge, Lahore. Accordingly the plaint was presented before the learned Insurance Tribunal, Lahore who framed the issues, recorded evide nce of the parties and vide judgment and decree dated 21.01.2013 dismissed the suit. Being aggrieved of the said judgment the appellant filed appeal before this Court which was allowed vide order dated 13.02.2014 and the matter was remanded to the learned Senior Civil Judge, Lahore. The learned Senior Civil Judge, Lahore vide judgment and decree dated 09.07.2015 decreed the suit, appeal whereof was also dismissed by the learned District Judge, Lahore vide judgment and decree dated 18.11.2015. The Civil Revision No.3557 of 2015 filed by the respondents before this Court was accepted vide order dated 27.06.2018 and the matter was remanded back to the learned District Judge, Lahore. Thereafter the learned District Judge, Lahore after hearing the parties dismissed the suit of the appellant vide judgment and decree dated 20.05.2019, hence the present appeal.
3. The learned counsel for the appellant submits that the judgment and decree passed by the learned District Judge is against the law and facts of the case; that the appellant has proved his case through production of oral as well as documentary evidence but the learned District Judge without considering the same proceeded to dismiss the suit, which findings are not sustainable in the eyes of law .
4. Conversely the learned the learned counsel for the respondent has submitted that the applicant has failed to prove the repayment of the loan amount through any trustworthy evidence as such learned court below has rightly passed the impugned judgment and decree and the instant RF A deserves dismissal.
4. I have heard the learned counsel for the parties and gone through the record with their able assistance.
5. The core controversy revolves around issues Nos.1 to 4 and I onus to prove the said issues was upon the appellant/plaintif f. In order to dislodge the burden, the appellant himself appeared as AW 1 and stated that he is a policy holder since 30.06.1995 and have paid the premium upto 30.06.2008; that he obtain a loan in the sum of Rs.3,00,000/- on 12.09.2000 which remained unpaid till year 2003. That he paid Rs.2,00,000/- to Mr. Raees Akhtar , the Area Manager of the respondent State Life Insurance for its onward payment to the respondent in the first week of June 2003. The said Manager undertook to resolve the issue of loan with the respondent. On 05.06.2003, the appellant paid him the said amount in the presence of Mr.Aamir Mehmood, Abdul Sattar and Muhammad Lateef and Zafar Ismail. Said Races Akhtar contacted clerk of appellant namely Mr. Abdul Stattar on 18.06.2003 in his office while the appellant was away to Islamabad and asked to arrange an amount of Rs.1,50,000/- as final settlement of loan with the respondent. Said Abdul Sattar clerk contacted the appellant in Islamabad and upon his instructions paid an amount of Rs.1,50,00 0/- to Mr.Raees Akhtar against a duly executed receipt. Thereafter Abdul Sattar made payment of two further installments on 17.06.2003 and 17.09.2003 upon advices of Raees Akhtar and thereafter continuously depositing the rest of premium installments on 23.11.2004 and 03.12.2005. The appellant contacted the respondent company on 19.01.2006 with the request to obtain some loan again when the respondent provided him a computerized slip showing updated complete payment of loan without any default. But on the next date when he visited the office for furthe r process of obtaining fresh loan, he was informed regarding the auto surrender of the policy on 30.03.2003, which has again been reinstated, but an amount of Rs.5,42,100/- was shown outstanding against him uptill 30.01.2006 and declined his request of fresh loan. He further stated that he never received any notice from the respondent department regarding the auto surrender of the policy; that Mr.Raees Akhtar was authorized agent of the respondent who (SLIC) was under legal obligation to honour the commitment made by the agent on its behalf. He also produced in evidence policy Ex.A1, receipt of payment of Rs.1,50,000/- Ex.A2, receipt of payment of premium dated 17.06.2003 Ex.A3, payment receipt of premium dated 17.09.2003 Ex.A4, payment receipt of premium dated 23.11.2004 Ex.A5, payment receipt of premium dated 02.12.2005 Ex.A6, computerized slip dated 19.01.2006 Ex.A7 and a notice dated 31.01.2006 Ex.A8. During cross- examination AW1 admitted that he is not in possession of any receipt issued by the respondent State Life Insurance for clearance of his dues but he has a clearance slip issued by Area Manager of the respondent that no loan is outstanding against him and got the said receipt exhibited as Ex. A-7. He admitted it to be correct that Ex.
A7 is a photocopy , which is a computerized slip and does not bear any stamp or signature of any issuing authority .
He also stated that it is correct that Mr.Raees Akhtar was not working as a Cashier in State Life Insurance/respondent.
Mr.Aamir Mehmood appeared AW2 and stated that he worked with the law offices of the appellant as stenographer; that he knew Races Akhtar , the agent of State Life Insurance for the reason that he also solicited with him in order to obtain insurance policy from State Life. He had also introduced the appellant to the respondent and was his close friend. The appellant obtained loan of Rs.3,00,000/- from State Life Insurance against his policy in September , 2000 whereafter an amount of Rs.2,00,000/- was handed over to Races Akhtar in the first week of June, 2003 in his presence at his sitting room at office of the appellant for onward transmission to the respondent.
Subsequently during the second week of June, 2003 when the appellant was at Islamabad Mr. Abdul Sattar office clerk paid Rs.1,50,000/- to Races Akhtar in his presence and secured a handwritten receipt from him on behalf of the respondent. During cross-examination he deposed that he did not know wheth er Raees Akhtar was authorized to collect the insurance premium on behalf of the State Life Insurance or otherwise. He also stated that he is not in possession of any receipt issued by the State. Life Insurance acknowledging the payment of amount.
Muhammad Latif (AW3) stated that he regularly visits the office of the appellant and an amount of Rs.2,00,000/- was handed over to Races Akhtar in the first week of June, 2003 in his presence when he was sitting in the office of the appellant for onward transmission to the respondent and subsequently during the second week of June, 2003 when the appellant was at Islamabad Mr.Abdul Sattar , the office clerk paid Rs.1,50,000/- to Raees Akhtar in his presence and secured his handwritt en receipt. During cross-examination AW3 showed his ignorance with regard to the exact date as to when the loan application was made, rather in illusory manner said that it was somewhere in the year 2000. He did not know whether the appellant told him about obtaining of loan and he did not know wheher payment was made to a government organization in cash that he did not know the outstanding loan amount in the year 2003 and also did not know whether the State Life accept the amount of Rs.2,00,000/-.
Abdul Sattar appeared as AW4 and stated that he is working as a clerk in the office of the appellant since 1992. He stated that in June, 2003 Mr. Raees Akhtar visited office and received an amount of Rs.2,00,000/- in his presence for onward transmission to the respondent. He also paid an amount of Rs.1,50,000/- to Mr.Raees Akhtar and secured a handwritten receipt upon instru ctions given by the appellant on telephone. During cross-examination he deposed that he is not in possession of any receipt issued by the State Life Insurance Corporation acknowledging the settlement of loan against the referred Insurance Policy; it is correct that Mr.Raees Akhtar was not employed as Cashier in the State Life Insurance Corporation of Pakistan.
Conversely on behalf of the respondent Nadeem Shahid, Assistant Manager PHS Loan Department, State Life Insurance Corporation. Ltd. appeared as RW1 and stated that the appellant purchased insurance Policy against which a policy loan amounting to Rs.3,00,000/- was issued to him, that as of today the outstanding loan is to the rune of Rs.10,48,424/-; he presented a statement of account as Ex.R3; that their record does not reflect any payment made by the appellant in discharge of above said loan; that only the Cashier of the department is authorized to receive payments against insurance policy loans as well as premiums and none else can receive any amount on behalf of the corporation. During cross-examination he deposed that Ex.A7 is computerized slip issued by their office. Volunteered that Ex.A7 was not issued by the loan department, therefore, it depicts only general entries; that if some policy is to be surrendered it is job of the Surrender Section and Loan Section has nothing to do with the same. He further deposited that if some policy holder commits any default with respect to re-payment of loan, the IT department issues slips/reminder to the defaulter .
6. From the perusal of the oral as well as documentary evidence, it appears that the appellant/plaintif f in paras 3 and 4 of claim stated that he paid Rs.2,00,000/- and Rs.1,50,000/- in the month of June, 2003, but he did not disclose the exact date, time, place and names of the witnesses in whose presence such payments were made.
Whereas AW1 stated that on 05.06.2003, an amount of Rs.2,00,000/- was paid as initial amount for further settlement of the defaulted account in the presence of Mr.Aamir Mehmood, Abdul Sattar and Muhammad Lateef and Zafar Ismail, but these facts are not written in the plaint. AW2 stated that Raees Akhtar received both the aforesaid amounts in his presence and AW3 also made same deposition but this fact was not mentioned in the plaint, as such these statements are made out of the pleadings which cannot be considered or discussed, rather same should be ignored while deciding the lis as held in the cases of Zulfiqar and others v. Shandat Khan (PLD 2007 SC 582), Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others (2014 SCMR 914 ) and Combined Investment (Pvt.) Limited v . Wali Bhai and others ( PLD 2016 SC 730 ) .
So far as the argument of the learned counsel that as per receipt Ex.A7 no amount is due against the appellant, whereas AW1 during his cross-examination admitted that receipt Ex.A7 is merely a photocopy and no explanation has been rendered about the original receipt and a photocopy per se is not admissible in evidence under the law until and unless permission for adducing the secondary evidence is obtained from the court and if any photocopy is available on the record without the permission of the court that cannot be considered as a valid piece of evidence.
The Hon'ble Supreme Court of Pakistan in a judgment cited as Province of the Punjab through Collector Sheikhupura and others y . Sved Ghazanfar Ali Shah and others ( 2017 SCMR 172 ) has held as under:
9. The argument that where a party did not raise objection as to the admission of a document and its exhibition, it cannot subsequently complain about its mode of proof has not impressed us as the provisions governing the mode of proof cannot be compounded or dispensed with, nor can the Court, which has to pronounce a judgment, as to the proof or otherwise of the document be precluded to see whether the document has been proved in accordance with law and can, as such, form basis of a judgment. In the case of Messrs Bengal Friends and Co., DACCA. v.
Messrs Gour Benode Saha and Co., and The Deputy Registrar of Trade Marks, Chittagong (PLD 1969 SC 477) this Court while dealing with the mode of proof of the documents not properly brought on the record held as under:- "Besides the authenticity of the account books relied upon by the respondent that were not properly brought on record as evidence of the mentioned therein. The learned Chief Justice in the High Court transactionsourt ruled out the objection raised by the appellant on the view that it related to mode of proof of the entries in the account books and was not raised before the Deputy Registrar of Trade Marks. It was omitte d from consideration that under section 34 of the Evidence Act entries in books of account regularly kept in the course of business are only declared to be relevant whenever they refer to a matter into which the Court has to enquire. But this does not dispense with the requirement of section 67, that if a document is alleged to have been written by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting. Mere production of account books kept in regular course of business, the therefore, does not constitute evidence of entries contained therein. The Legislature has made an exception in this behalf in the Bankers' Books Evidence Act. Section 4 provides as follows: "Subject to the provisions of this Act, a certified copy of any entry in a banker's book shall in all legal proceedings be received as prima facie evidence of the existence of such entry , and shall be admitted as evidence of the matters, transactions and accounts therein recorded in every case where, and to the same extent as, the original entry itself is now by law admissible, but not further or otherwise."
In the absence of such a provision in the Evidence Act regarding entries in books of account kept in regular course of business the mere production of the account books does not constitute evidence of the transaction and accounts therein recorded. Mr. Israrul Hossain further pointed out that the account books containing Exh. G.B. 3 series were not even exhibited by the Deputy Registrar . In the affidavit of the respondent sworn on the 25th August 1958, in paragraph the genuineness of the records, Exhs. G.B. 1 to G.B. 10, is affirmed, but this bald statement did not constitute proof of the entries in these series unless they were in his handwriting and he swore to the correctness of the transactions mentioned therein. The documents Exhs. G. B. 3 series relied upon by the respondent No. I in support of his claim that since 1937 he had been selling on large scale in Bengal and Assam including the reverine districts now constituting East Pakistan coaltar bearing trade mark "Jahaj Marka Al-katra" with a device of a ship were in this view wrongly treated as evidence by the Courts below ."
10. In the case of Khan Muhammad Yusuf Khan Khattak v. S. Ayub and 2 others (PLD 1973 SC 160) this Court while dealing with an identical issue held as under:- "I am of the view that even if such docum ents are brought on record and exhibited without objection, they remain on the record as "exhibits" and faithful copies of the contents of the original but they cannot be treated as evidence of the original having been signed and written by the persons who purport to have written or signed them, unless the writing or the signature of that person is proved in terms of the mandatory provisions of section 67 or the Evidence Act. If instead of the copy Exh. P.E, the original form "E" which formed the primary evidence, had been exhibited on the record without proving as to who was its, author can it be argued that by merely exhibiting it, the document should be taken for granted as bearing the signature of the appellant without proof that in fact it was written and signed by him. The onus obvio usly lay on the respondent to prove this fact and his failure to prove it did not cast any responsibility on the appellant to negatively disprove it."
The Hon'ble Supreme Court of Pakistan in another judgment cited as Hyderabad Development Authority through MD Civic Centre. Hyderabad v. Abdul Majeed and others (PLD 2002 SC 84) has held that mere a photocopy produced by any party will be subject to admissibility as no step was taken to prove said document as required under the law . Relevant portion of the judgment (supra) is reproduced as under: "9 Besides adopting the reasons for not accepting this document in evidence, we further add that as per the statement of Mushtaq Ahmed, this conveyance was taken on record subject to its admissibility because the witness tendered its photocopy . Inasmuch as later on no steps were taken by the respondents to prove the contents of this document by leading primary or secondary evidence in terms of Articles 75 and 76 of Qanun-e-Shahadat Order , 1984. Therefore, this document also cannot be taken into consideration. It is also to be noted that merely by tendering a document in evidence gets no evidentiary value unless its contents are proved according to law ."
Furthermore admittedly Races Akhtar was not authorized to receive any amount on behalf of the State Life Insurance Corporation. The respondent also produced the statement of account as Ex.R3 which shows that the loan amount of Rs.10,48,424/- is due against the appellant and presumption of truth is attached to the said document. The learned counsel for the appellant has failed to point out any illegality , irregularity mis-reading and non-reading of any evidence in the impugned judgment and decree passed by the learned trial, which has rightly been passed and no illegality has been committed.
7. In view of what has been discussed above, this appeal is hereby dismissed being devoid of any merits.