1. ' This appeal under section 100, C. P. C. Is filed against the judgment and decree of Vth A. D. J., Karachi, decreeing the suit of the respondent/ plaintiff filed against the appellant/defendant in the sum of Rs, 13,000 with interest at the rate of 6 per cent per annum from the date of the suit till the amount is realised.
2. ' The respondent filed suit bearing No, 870/70 against the appellant for recovery of a sum of Rs, 13,000 with interest at the rate of 9% per annum from the date of suit till its recovery on the allegations that the said sum of Rs, 13,000 was advanced by him to the appellant as friendly loan in or about March, 1966. That the appellant failed to repay the said loan but on 5-5-1967 he executed a pronote in favour of respondent acknowledging the above amount and agreeing to pay the same on demand. That the appellant failed to repay the sum of Rs, 13,000 when demanded and, therefore, after serving a legal notice by registered post A. D, the respondent filed suit No, 870/1970 for recovery thereof. The 12th Civil Judge, Karachi, after recording evidence of the parties and hearing them found that the money was advanced by the respondent to appellant as a loan which the appellant failed to return when demanded but dismissed the suit of respondent, on the ground that it was hit by section 8 of the Money Lenders Act. On appeal the first appellate Court disagreed with the trial Court that the suit was barred under the provisions of Money Lenders Act and decreed the suit for the amount claimed in the suit but allowed interest only at the rate of 6i per cent from the date of decree till the amount is realised. The appellant/ defendant has challenged the judgment and decree of the first appellate Court. I have heard Mr. Akhtar Mahmood, Advocate and Mr. Sh. Sultan Ahmed, Advocate for the appellant and respondent, respectively.
3. ' Mr. Akhtar Mabmood, the learned counsel for the appellant concedes that the finding on issue No, 4 by the trial Court holding that the suit of respondent was barred under the provisions of Money Lenders Act was not correct and, therefore, its reversal by the first appellate Court was correct. The learned counsel has however, challenged the findings on issues Nos. 1' to 3.
4. ' It is evident from the judgments of the two Courts below- that in so far the fact that the respondent had advanced a sum of Rs, 13,000 to the appellant. As a friendly loan and that the latter had executed a pronote in favour of the-former acknowledging the same on 5-5-1967, is concerned, both the Courts found in favour of respondent. Therefore, this finding of fact cannot reopened in 2nd Appeal unless it is established that this finding is based on misreading of evidence or was arrived at by perverse appreciation of evidence A on record or some material and important piece of evidence has been overlooked by the Courts below. Mr. Akhtar Mahmood has raised the -following contentions before me:--
(1) That the respondent/plaintiff did not examine himselt in the suit but examined one Mirza Anwar (Exh. I) whose evidence has been considered by the two Courts below as the evidence of plaintiff which amounted to misreading of the evidence.
(2) That the finding on issues I and 2 is based on documents which were not relevant to the issue and as such the finding of the two Courts below is based on no evidence;
(3) That one of the documents relied upon in the plaint by the respondent was an alleged receipt dated 27-5-1967 whereas the receipt produced in evidence is dated 5-5-1967 and, therefore, an adverse inference should have been drawn against the respondent for non-production of the receipt dated 27-5-1967 ; and
(4) That the documents namely Exh. P-3 and P-4/3 were admitted in evidence by the trial Court in contravention of the provisions of Order VII, rule 18, C. P. C. And, therefore, if these documents are excluded from consideration there is no evidence on record in support of the claim of the plaintiff in the suit.
5. ' None of the contentions raised by the learned counsel have any force.
6. ' In so far the first contention of the learned counsel for the appellant is concerned the same has been raised for the first time before this Court. The contention in substance is that the suit was filed by one Mirza Muhammad Ajmal while the person examined in the Court as Exh. 1 and considered as plaintiff is Mirza Muhammad Anwar. I have seen the evidence of Exh. 1, recorded before the trial Court and after considering the same I am of the view that in the deposition sheet the name Mirza Anwar was apparently mentioned by some clerical mistake. The witness in his examination-inChief stated as follows :- 'I have advanced a loan of Rs, 13,000 to him on his demand in 1966."
7. ' The identity of the person deposing was never disputed at any stage by the plaintiff. The entire cross-examination of this witness (Exh. 1) shows that he was considered by the appellant as the plaintiff Mirza Muhammad Ajmal. In fact the case was argued by the appellant both before the trial Court as well as before the first appellate Court on the basis of the evidence of plaintiff in the case.
8. Apart from it, whether the witness examined as Exh. 1 was plaintiff or not is a question of fact and this point not having been raised by the appellant before the two Courts below cannot be allowed to be raised now for the first time in second appeal. I, therefore, reject the first contention of learned counsel that the plaintiff did not appear as a witness in the case in support of his claim.
9. ' The next contention of the learned counsel for the appellant is that the conculsions reached by the Courts below on issues 1 and 2 are based on letters Exhs, P. /1 to 4/7 alleged to have been written by the appellant to respondent. Some of these letters, it is contended by the learned counsel, are neither addressed to respondent nor make any mention of the alleged transaction of loan and, therefore, the Courts below while deciding issues Nos. I and 2 on the basis of these letters misread the evidence on record or in any case based their decision on documents which are irrelevant. It is true that out of Exh. P-4/1 to 4/7, some are not addressed to respondent personally and make no mention of the transaction of loan between the parties, but their consideration by the Courts below cannot be described as irrelevant in the circumstances of the case as the appellant had totally denied before the trial Court in his written statement having even known the respondent before. Apart from it in one of these letters Exh. P. 4/3, addressed to the respondent on 9th October, 1967, the appellant regretted having failed to meet the demand of respondent and promised to pay some money in November and the rest within one year. In addition to it there are other evidence both oral and documentary on record which supports the findings of the two Courts below in this regard. Therefore, it cannot be said that the conclusions of the Courts below were based on evidence which is wholly irrelevant. In arriving at a finding of facts where the Court referred to several pieces of evidence on record some of which were relevant and the finding when examined in the light of such evidence appears to be sustainable in law, it cannot be said that the finding was arrived at by the Courts below by misreading of evidence simply because some other document were also referred by the Court which were not relevant; unless it is show that the conclusions were wholly based on documents which were not relevant to the issue. The letter Exh.
10. P-4/3 produced before the Court reads as under :- {{URDU TEXT}} ' The above referred letter (Exh. P-4/3) do show that the appellant was full of regret for having failed to repay the money and promised to pay a part of it in the month of November and the rest within one year. I fail to see how on the face of this important and relevant piece of document and other evidence available on record the concurrent finding of fact by the two Courts below that the respondent had advanced the sum of Rs, 13,000 to the appellant as loan which he failed to return on demand could be held to be based on misreading of evidence or on evidence which was irrelevant or on no evidence at all. It is also not correct to argue that the findings on issues 1 and 2 were based solely on Exhs. P-4/1 to P-4/7. There is also on record the pronote and the receipts Exhs.
11. P-2 and P-3 respectively executed by the appellant which supports the above conclusions of the two Courts below on issues 1 and 2. Mr. Akhtar Mahmud, attempted to show that there were contradictions in the oral evidence of the two attesting witnesse and that of the plaintiff regarding execution of the documents Exh. P-2 and P-3. The contradictions pointed out by the learned counsel were duly considered by the two Courts below and after considering the same the evidence was believed by the Courts below and the execution of Exhs. P-2 and P-3 was held to be proved. Mere fact that this Court may have reached a different conclusion on reappraisal of the evidence on record is no groun for interfering with the concurrent finding of fact by the two Courts below.
12. ' The next contention of the learned counsel for the appellant is that Exhs. P-4/3 and P-3 were admitted in evidence by the trial Court in violation of the provision of Order VII, rule 18, C. P. C. It is contended by the learned counsel that these twO documents were neither mentioned in the list of documents filed nor were entered in the list of documents relied upon and, therefore, they could not have been accepted in evidence when offered by the respondent. Rule 14 of Order VII requires that where a plaintiff sues on a document in his possession or power, he shall produce it in Court at the time of presentation of plaint and shall .Deliver a copy thereof to be filed with the plaint. This rule also requires that where a plaintiff relies on any other document in support of his claim whether in his possession or power or not, he shall enter such documents in a list to be filed with the plaint. Rule 18 of Order VII provides that where a document which was required by rule 14 of the same order to be filed with the plaint or entered in the list of documents relied upon, is not produced or entered so, it shall not be received in evidence without the leave of the Court at the hearing of the suit. The learned counsel for the appellant contends that the documents Exhs. P-4/3 and Exh. P-3 were neither filed with the plaint nor entered in the list of the documents relied upon annexed to the plaint by the respondent and, therefore, they were inadmissible in evidence. The learned counsel for the respondent in reply to the above contention of appellant's counsel urged that although the respondent had not specifically mentioned the letter Exh. P-4/3 in the list of documents relied upon but he did he rely upon the correspondence between the parties and mentioned the same in the list of documents relied upon and since the letter Exh. P.4/3 was also part of the correspondence its production could not be objected on the ground that it was not mentioned in the list of documents relied upon. Alternatively it is urged by the learned counsel that the genuineness of this document was not disputed by the appellant nor any objection as to its production in evidence was raised by him at the titne it was produced in evidence by the respondent and, therefore, the appellant could not now raise any objection as to its production in evidence. With regard to production of receipt Exh. P-3, the learned counsel contends that this document was specifically mentioned in the list of documents relied upon but through mistake the date of this document was mentioned as 27-5-1967. It is also contended with regard to production of document Exh. P-3 in evidence that its production was never objected by the appellant before the trial on the ground mentioned in rule 18 of Order VII, C. P. C. And, therefore, such an objection cannot be raised now by the appellant. The contentions of learned counsel for the respondent are not without force. I may at the very outset point out that on account of non-production of the copy of a document with the plaint or non-mention of the same in the list of documents relied upon, the document does not become inadmissible in evidence. The effect of such an omission on the part of plaintiff will be G that he cannot produce the document at the hearing of the suit except with the permission of the Court. Such permission of the Court may either be expressed or implied as the circumstances of the case may admit. The respondent in his plaint mentioned the list of documents filed relied upon as under :- "Documents filed :
(1) Pronote.
(2) Copy of notice dated 2-8-1969.
(3) A. D. Receipt. Documents relied upon :
(1) Letters of the defendant dated 19-10-1966, 21-11-1966 and 27-5-1969.
(2) Receipt dated 27-5-1967.
(3) Correspondence with the defendant.
(4) Three certificates of posting."
13. ' After going through the list of documents filed and relied upon, I am of the view that the documents Exhs. P-3 and P-4/3 were substantially mentioned in the list of documents relied upon.
14. The explanation offered by the learned counsel for the respondent that receipt Exh. P-3 produced in the evidence was by mistake shown in the list of documents as dated .27-5-1967 seems to be plausible in the circumstances of the case. The respondent was not subjected to any cross- examination when he produced the letter Exh. P-4/3 nor the appellant raised any objection as to its production on the ground mentioned in rule 18 of Order VII, C. P. C. Similarly when the receipt Exh. P- 3 was produced in evidence, the appellant neither raised the objection that it was not the same as mentioned in the list of documents relied upon nor it was urged that it could not be produced in evidence in view of the provisions of rule 18 of Order VII, C. P. C. The cross-examination of respondent before the trial Court does not suggest that genuineness of Exh. P-4/3 was disputed and with regard to receipt Exh. P-3 the Courts below came to the conclusion on the basis of evidence of attesting witness and respondent that it was executed by the appellant. The first appellate Court while dealing with the above contentions of the appellant observed as under "I also do not attach much importance to the difference in dates of Exh. P-3 as relied upon in the plaint and as produced in Court as it appears to be only a clerical error."
15. The inference drawn by the first appellate Court seems to be quite logical and in accord with the evidence on record. The documents having been admitted in evidence without any objection from the appellant ,before the trial Court cannot now be disregarded on the ground that they were produced in contravention of rule 18 of Order VII, C. P. C. Even otherwise, in the circumstances of the case these documents shall be deemed to have been admitted in evidence with the implied leave of the Court. The last contention of the learned counsel for the appellant is that the Courts below should have drawn adverse inference against the respondent for non-production of receipt dated 25-7-1967 mentioned in the list of documents relied upon, filed with the plaint by the respondent.
16. This contention also has no force. Firstly the learned counsel for the respondent explained that the receipt Exh. P-3 produced in the evidence is the same which was mentioned in the list of documents relied upon through some mistake as dated 25-7-1967. Secondly in the cross- examination of respondent no question was asked by the appellant with regard to non-production of receipt dated 25-7-1967 mentioned in the list of documents relied upon. The contention regarding non-production of alleged receipt dated 25-7-1967, does not appear to have been raised at all before the Court of first instance. I, therefore, find no substance in the contentions of the learned counsel for the appellant. No other point was raised. The result of above discussion is that the appeal is dismissed with costs.