' SARDAR FAKHRE ALAM, J.-By this constitutional petition Shamshad and his two brothers sons of Sahibul Hach have sought a declaration to the effect that the judgments and decrees of respondents Nos. 2 to 5 (the revenue Courts) holding the petitioners to be tenants of the land in suit, defaulters of rent and, therefore, liable to be ejected, are without lawful authority and of no legal effect.
2. Briefly stated the facts relevant for the disposal of this writ petition are that Mian Abdur Rehman respondent No. 1, moved the Assistant Collector Ist Grade, Malakand Agency Dargai (respondent No, 2) in the year 1974 for the ejectment of the petitioners. His tenants, who had defaulted in payment of rent. It was the case of the landlord respondent No. 1 before the trial Court that he had given 104 Jaribs of land to the petitioners on lease at the lump sum rate of Rs, 1,600 per annum in the year 1971. The lessees paid only Rs, 800 in the first year and the rest of the lease amount is outstanding against them. He, therefore, prayed for the recovery of three years of arrears of rent and the ejectment of the tenants from the suit land. The suit was contested by the tenants and on the averments of the parties following five issues were framed :-
(1) Whether the relationship of landlord and tenant exists?
(2) Whether the defendants are defaulters of rent?
(3) Whether defendants are liable for ejectment?
(4) Whether the defendants are entitled for any improvements?
(5) Relief.
3. During the pendency of the proceedings the tenants deposited a sum of Rs, 3,000 in the treasury on 19-2-1976 without giving any detail about the period for which they had deposited this amount.
The Assistant Collector, respondent No, 2, the revenue Court, by its impugned detailed judgment dated 31-12-1977 decided all the issues against the tenants. They were held to be defaulters in payment of rent of the suit land of which they were in possession for the last six years and, therefore, they were ordered to be ejected under Paragraph 25 of Martial Law Regulation No, 115.
The operative part of the judgment reads :- "The plea of the defendants that the land in suit was leased out to him at the rate of Rs, 134 per Jarib per year is baseless because no written proof or witness has been produced in support of this. As such I consider the suit land on lease of lump sum basis for Rs, 1,600 per annum and accordingly passed a decree of Rs, 4,800, for arrears of three years commencing from 1971. Out of the total arrears Rs, 800 were paid to the plaintiff. In cash and Rs, 3,000 were deposited in treasury vide Ch. No, 6 dated 19-7-1976. This leave the balance of Rs, 1,000 (Rs, one thousand) against the Defendants which is to be recovered and paid to the owner (plaintiff) officially. The defendants are dp faulters of rent as well as illegal possession of the suit land without any valid lease agreement.
As such they are liable for ejectment under section 25 of the Martial Law Regulation No,
115. Hence they are ejected from the suit land.
' There are no court-fee fixed on the plaint. I further direct that the plaintiff should make good the deficiently of the court-fee within 30 days failing which the decree shall be liable for dismissal."
4. It will be pertinent to observe here that the suit land is situated in Malakand Agency to which the parties also belong where the tenancy as well as other laws have been applied not in the very distant past. The stand of the petitioners before the trial Court, which is evident from the written reply filed by them on 3-7-1974, was that they had taken the land on lease for a period of five years from Mian Abdur Rehman, landlord respondent No. 1.' They had paid two years lease money and the landlord had refused to receive the lease money for the third year; that the landlord be directed to receive the lease money for the third year and that they be allowed to enjoy the land for a full lease period of five years. Against the judgment and decree dated 31.12-1977, of the trial Court of Assistant Collector Ist grade, the petitioners filed an appeal before Collector Malakand before whom only the point of court-fee was argued as is evident from his judgment dated 19-6-1978. In compliance with the order of the trial Court the landlord only fixed court-fee on the sum of Rs, 3,000 and not Rs, 4,800, the decretal amount to which he was found to be entitled. Therefore, it was argued on behalf of the tenant-petitioners that as the landlord has not complied with the direction of the lower Court the decree be annulled and his suit dismissed. The appellate Court arrived at the finding that the operative part of the order of the trial Court was not clear which misled the landlord. Therefore, exercising powers under section 12 of the Court-Fees Act, the appellate Court allowed the landlord to make up the deficiency of court-fee. The petitioners-tenants went in revision before the Court of Additional Commissioner, Malakand Division (respondent. No, 4). There too the only question of court-fee was argued which did not find favour with the Additional Commissioner and the revision was dismissed on 9-6-197). A second revision was filed before the Board of Revenue. Before him the question of short payment of court-fee was not touched and only the default in payment of rent was argued. The contention did not find favour with the Senior Member, Board of Revenue and the second revision was also dismissed on 25-11-1979.
5. Learned counsel for the petitioners was heard at length who contended that the revenue Court had no jurisdiction in the matter; that the petitioners had not defaulted in paying the rent/lease amount to the landlord; that the appellate Court was not empowered to allow the landlord in making good the deficiency of court-fee after the expiry of a period of thirty days allowed for the purpose by the trial Court and that as envisaged by section 25 of the N.-W. F. P. Tenancy Act, 1950, first a decree for the arrears of rent is to be obtained by the landlord and only then the tenant can be ejected in case the decree for arrears of rent remains unsatisfied.
O.,,:iblaDorating the first contention the learned counsel for the petitioners, tn* that the petitioners were the lessees and not the tenants of the spi pertyoonde,therefore the revenue, Court had no jurisdiction in the riRtftq ..,:i :, .,...;" , ?,' di 7... The contention lacks substance for two-fold reason. Firstly clause (f ) nfithrt eases elaborated in second group to section 49:r of the N.-W. F. P. TenarioyAct mentions the suit of the present nature which is triable by the IkeYenutrCourts. It reads :- "(f) any other suit between landlord and tenant arising od 4We lease -- mitir conditions.On' which a tenancy is held." 1;)': , '
S(trO o I i di ii as has already been observed earlier, the land is tituated in Malakand Agency where no regular revenue record is kept. As is the present case most..,ofitlae transactions, between the parties take place orally. From the materiarl, op, record it cap, be positively affirmed that the suit land was given to the petitioners to ,tetiatiti the, same oP4he paymenkof yearly cash rent. Besides before none Of the forums the appellate or the deviational approached bro he petitioners the objection to the jurisdiction of the revenue Courts a ransack the trial Court as well as the last revisional Court before who the question of default in payment of rent was argued, arrived at the concurrent finding that the petitioners had defaulted in payment of rent and they were liable to sentiment. This question was not agitated before the appellate Court as well as the first revisional Court. No misreading of endence or non-consideration of material evidence could be pointed out by the learned counsel so as to warrant interference with the concurrent finding films iii 8J (The deficiency in payment of court-fee wali brought to the notice of appellate Court by the petitioners themselves on which the appellate Court ordered the Landlord to make the deficiency under subsection (2) of section 12 of the Court FeesAet. The ,operative part of order of the trial Court reproduced here be foreing the Earlier part of the judgment does create 4 confusion as to the , amount on which the court-fee was to be paid. The 'appellate Court in the circumstances was perfectly justified to hold that the default in the payment of proper court-fee was not wilful and the same be made good during the pendency of the appeal. In a case reported as "Mst. Bakht Shari and others v. Rab Nawaz and others (1). It has been observed that the High-Court in appeal was competent to grant period for making up the deficiency in the court-fee. In another case Rachappa Subrao Jadhav Desat v. Shidappa Venkatao Jadhav Desai (2), the honourable Judges were pleased to hold :- {{BLUR PAGE}} "The Court Fees Act was passed not to arm a litigant with a weapon of technicality against his opponent, but to secure revenue for the benefit of the State. It is not competent to a defendant in a suit to utilise the provisions of the Act at the appellate stage, not to safeguard the interests of the State, but to obstruct the plaintiff i,e, he cannot contend that the Court wrongly decided to the detriment of the revenue, but that it dealt with the case, without jurisdiction."
Furthermore the objection with regard to the deficiency in payment of court-fee was not at all raised before the Member, Board of Revenue in the second revision petition which Court is the final Court as far as the revenue matters are concerned.
9. The argument that the landlord had first to obtain a decree for arrears of rent and in case it remained unsatisfied then and only then the
(1) 1968 SCMR 714 (2) AIR 1918 P C 188 {{BLUR PAGE}} petitioners could have been ordered to be 'e*cted, does xi{{ the law on the subject. Under' section 24'eflhe N.-W. F. Li,-)t-',TeihneY-- Act a tenant can be ejected who fails payitent on due dtite,by inovitigalhe revenue enurt under section' 49 of the Act' ibid,,tasloffly the reeelitdkedurt under: clause (c), of the second Itotip to section 40 littes'"Ithn -t in the matter 'Vilipsuits by landlord to eject a tenant. Sigimeitir,,IPtiii:ieCreecfor, an arreat of rent) - reilialins unsatisfied the decree holder can -hue officer under section 26 of the Act ibid to haVe ltit tenant ejected. The distinction between the two provisions as envisaged by the lawaltidthat a 1) landletdican seek the ejectment of the tenant by moving` the revenue Court under section 24 of the Act ibid-in case the tenant, Milt t`tiptiiiient'on due date and only the revenue Court is competent to pass thelejettnient chg.TOe,.Whilp,,a landlord who had, obtained,okilectee fcit arrears ufAent and the Same remains unsatisfied, by ,moving ,theoleienue officer, k.11.Iiy ejectment of the, tenant under sections 26 and. Z7 of the Act 0/ it former case it I5 *venue Court which can ,grant the relief ,airrlatter eventuality a Reyenue Officer is also competent to ej the stnnaAthe petitioners before the trial Court was that 4 wen the suit, land fut,, of:Ariyears in theayefiti,i tifle time cfroit only three years NOT, expired they AsA* 412.,teoliittlin occupation of land on the terms and c agrend 401,1 roc:laiiAt* i?Priod of twq Years. HoweVer, even after the apse ofn109v,.,xearErtjaei still in possession , 05,:sAlit .144 whic according nynnsjg ks"
4 ia klZa hardly -!-, r,oitsiodorm " I ' c 10. For the itensons,nforenaid we are of the view that this petitionnladlt Inuit and as such the same is, dismissed with costs. In pursuancetoltheionitst of this Court the petitioners have been depositing the slue ireadylirehttizeonst rtp,whieh lvfian, Abdur Rehman, Landlord respondept No. 1 t'iktentitle who ay r&'elve-it frordthe office on iiiittiffie4uest:' e'""""" ' 443(3 s. . _ PPti .10 k (-)t QOQI q ttaL D 88') 1. (1 q tiet?[ 689 Off. 'ic.}1 6Cg1 E Q,OQI U PLD 1983 Peshawar 31 siubl2o141 livD Rtaa 4riou.....th3qqA_pefore Faiz Muhammad Khan,/ bsot oQ .2 ----- IttrIneleb yd GUL V13)115fIE 10 loguism lo InoinalLic 8iiiimoopsuit) unlit b53ubolq Uifibrioq'es1 yns tuoittiw betirifiAtiniukkAINit of b5llicniocj e5e f)rioc nbit3eido Itaigulat,Firsti:Appeal Not)88 ob1977atdecOed on 6taillOomilteu 194a
(a) Evidence Act (I of 1872)- a satint .q} duilf blV.12k\*4114401)alik I Oktl ,at as attornW ldritutti'h& Be) &let\ rt ay Bank and to institute and conduct suit in/t its behalf practice in banking trade--lieldv.g4n*Utken.iffrlifihtlAPtiCCA L01 dta
(b) Contract Act (IX of 1872)- rii default - S. 176-Pledge--Pawnee's rigg on by pawner-Goods pledged -With- liar& losinrnpskni. t4ertyn bvidencettto pilaf that--, .Pawners everasked flawless't4Baakbto sell such goodinr NtiukihR8C1 c.`i."4:titinitssiOn to findcustomertherefor ''i-4411344. pawnee411anlenkit66hged-03B lo iri9 I to aell pledged goodsil and afteradjustiOirawafprrdcapjalIiw thereof sue for-balance amount, lUankyi.i*c-35j/idi tiffs litie OLI1
(c) Bankers' Books Evidence Act (XVIII of 1891)- -- S. 4 read with Evidence Act (I of 1872), S. 65-Evidence as to entries in account books kept in regular course of business-Mere production of such account books does not constitute evidence of entries made therein-Exception to such rule, however, exists, in case of a Bank to which Act applies-Certified copy of any entry in a Banker's book to be received as prima facie evidence of existence of such and also admissible as evidence of matters, transactions and accounts recorded therein-Mere production of such copies in Court-Held, would not, however, be by itself sufficient to charge a person with liability to pay amount stated in such entries without corroboration thereof. It is true that mere production of the account books kept by any business concern in regular course of business does not constitute evidence of the entries made therein. Such entries in order to constitute evidence need to be proved by calling the person who made them as a witness in Court.
However, there is an exception to this rule in the case of a Bank, to which the Bankers' Books Evidence Act, 1891 applies. Section 4 of this Act allows a certified copy of any entry in a banker's book to be received as prima facie evidence of the existence of such entry and is also admissible as evidence of the matters, transactions and the accounts therein recorded. This, however, does not mean that mere production of such copies in Court would by itself be sufficient to charge a person with liability. Such entries also do require corroboration to make the person liable to pay the amount stated therein. The nature or the extent of the corroboration would, however, depend on the circumstances surrounding each transaction and the reliability of the manner in which the account has been kept. [p. 36]C Messrs Muhammad Siddiq Muhammad Umar's case PLD 1966 SC 684 ref. PLD 1972 Pesh. 175; PLD 1968 SC 140 and PLD 1969 SC 136 ref. PLD 1969 SC 477 and PLD 1976 Kar. 556 distinguished.
(d) Civil Procedure Code (V of 1908)- -- S. 96 read with Evidence Act (I of 1872), S. 67-Appeal--Documentary evidence-Pronote stated to have been signed by defendant-respondent produced at time of recording statement of manager of plaintiff-Bank, admitted in evidence and duly exhibited without any objection by defendant- Held, defendant could neither be permitted to raise such objection at argument stage before trial Court nor before High Court. [p. 36]D et seq Muhammad Yousaf Khattak's case PLD 1972 Pesh. 175; Abdullah's case PLD 1968 SC 140 and Malik Din's case PLD 1969 SC 136 rel. Nazirullah Khan for Appellant.
Major Fazli Akbar Khan for Respondent. Date of hearing : 8th September, 1982.
' This appeal is directed against the judgment and decree, dated 2-4-1977, passed by the Senior Civil Judge, Mardan in favour of Habib Bank Ltd. Against Gul Habib, the appellant herein, for the recovery of Rs, 30,911.59 with costs as well as interest at the rate of ten per cent. From the date of institution of the suit till the satisfaction of the decree.
2. It was stated in plaint that the plaintiff-Bank has been registered under the Companies Act, 1913, having Head Office at Karachi and branches at different places in the country, one of which being at Khawaja Gang, Hoti Mardan ; that Gul Habib, the appellant herein, had opened in the said branch of the Bank Account C. D. A/c. No, 40 ; that after pledging some `country Tobacco' with the Bank the defendant had on 8-7-1965 obtained from the Bank, under Cash Credit Scheme, a loan of Rs, 20,000, which was first credited to his said account and after opening Cash Credit Account in his name the said amount was then debited to the said account ; that the defendant on various occasions in acknowledgment of the said debt and the interest becoming due thereon executed on various dates, promotes and letters in favour of the Bank and kept both the accounts running ; that the last acknowledgment of the debt of Rs, 30,622.90 was signed by the defendant on 31-12- 1972; that up to 31-1-1973 the amount with interest due from the defendant stood at Rs, 30,911.59 which the defendant refused to pay thus forcing the plaintiff-Bank to bring this suit.
3. The defendant contested the suit on many grounds, legal as well as factual. He pleaded that he had pledged tobacco worth Rs, 60/70 thousands with the plaintiff-Bank and on that security had obtained some amount as advance from the plaintiffs -Bank. He also admitted in his written statement having signed some printed forms in favour of the plaintiff-Bank but stated that the documents enclosed with the plaint were, however, fictitious and collusive and were the result of fraud played upon him by the emloyees of the Bank.
4. The learned trial Judge, on the pleadings of the parties, framed the following issues :-
(1) Whether the plaintiff has got a cause of action ? 0. P. P.
(2) Whether the Manager Habib Bank Khawaja Ganj Mardan is not the attorney of the plaintiff, if so, its effect? 0. P. D.
(3) Whether the suit is within time? 0. P. P.
(4) Whether the plaintiff is estopped from suing? 0. P. D.
(5) Whether the documents attached with the plaint are fraudulent, fictitious and inadmissible in evidence, if so, its effect? 0. P. D. .(6) Whether the tobacco of the defendant was pledged with the plaintiff and the former was given some amount in advance, if so, its effect?.
O. P. D.
(7) Whether the defendant is entitled to Rs, 60,000 from the plaintiff by way of set off? 0. P. D.
(8) Whether plaintiffs are entitled to the recovery of Rs, 30,911.59 with interest as prayed for ? 0. P. P.
(9) Relief.
5. The parties led evidence before the trial Court in proof of their respective claims. On conclusion of the trial the learned trial Judge decided issue No, 4 against the defendant. He discussed issues Nos. 1, 5 and 8 together and decided issue Nos. 1 and 8 in favour of the plaintiff-Bank and issue No, 5 against the defendant. Issues Nos. 2, 6 and 7 were also decided by the learned trial Judge against the defendant and issue No, 3 was decided by him in the affirmative. Consequently, the learned trial Judge passed the decrec as aforesaid in favour of the plaintiff-Bank.
6. Not satisfied with the judgment and decree passed by the learned trial Judge the defendant has come up in appeal to this Court.
7. The learned counsel for the appellant in his arguments raised three grounds. His first ground was that the manager of the plaintiff Bank, on whose instructions the plaint was drafted, and the suit filed, had no authority on behalf of the Bank to file the suit and similarly Mr. Dost Muhammad, who gave statement on behalf of the plaintiffs -Bank, also had no authority to give such statement. The learned counsel, therefore, urged that the suit having been filed by an incompetent person should not have been entertained and the solitary statement of the witness appearing for the plaintiff- Bank having come from the mouth of the person having no authority to give such statement should not have been accepted by the trial Judge. Consequently, he argued, the suit was liable to be dismissed. His second ground was that the defendant, appellant herein, had pledged tobacco with the plaintiff-Bank as a security for the so-called debt, which should have been sold by the Bank and its proceeds adjusted against its claim and since the plaintiff-Bank failed to sell the tobacco pledged with it, which lost its value by the passage of time thus putting the appellant to a great loss, the plaintiff-Bank was not entitled to the decree prayed for. The third ground urged by the learned counsel for the appellant was that since the appellant had not admitted having signed the promotes and the letters brought on record and relied upon by the plaintiff Bank, it was essential for the plaintiff Bank to prove all those documents in evidence in accordance with the law on the subject and since it was not done, the learned trial Judge could not base his findings thereon and could not, therefore, pass decree in favour of the plaintiff-Bank. In this context the learned counsel submitted that the mere production of those documents in Court and copies on the record, without proving the signatures of the appellant thereon, was not sufficient to saddle the appellant with the liability. He further argued that 'the mere production of the copies of the account books on the record was also not sufficient, unless the person who made entries in those account books was produced in Court to prove the entries made by him therein. In support of his arguments the learned counsel for the appellant referred to PLD 1969 SC 477 and PLD 1976 Kar.
556.
8. By 'raising the aforesaid arguments the learned counsel for the appellant has assailed the findings of the learned lower Court on issues Nos. 2, 3 and 5 to 8.
9. The learned counsel for the respondent, however, argued that the suit, out of which this appeal arose, was filed by a proper person, who was having in his favour from the Bank power-of-attorney to file the suits. He also argued that Mr. Dost Muhammad, who appeared in the witness-box on behalf of the plaintiff-Bank, also had in his favour the necessary power of-attorney. The learned counsel further argued that legally it was not necessary for the plaintiff-Bank to first sell the tobacco pledged with it in order to adjust its proceeds against its claim and then bring a suit for the amount remaining unsatisfied. The learned counsel further argued that the plaintiff-Bank was keeping books of accounts in the ordinary course of business and copies of the entries made in those books are to be received in evidence under section 4 of the Bankers' Books Evidence Act, 1891.
He, therefore, urged that it was not necessary for the plaintiff-Bank to summon the person who made those entries to prove the same. He further submitted that the promotes and the letters brought on record, duly exhibited, together with the admissions made in the written statement as well as in the statement given in Court, were sufficient corroboration of the entries made in the books of account. He, argued that the learned trial Judge was right in deciding the issues in the manner he did and the judgment and the decree passed by him are unassailable. The learned counsel for the respondent, in . Support of his arguments, referred to PLD 1972 Pesh. 175, PLD 1968 SC 140 and PLD 1969 SC 136.
10. As to the first ground urged by the learned counsel for the appellant, which was also pressed before the trial Court, the learned trial Judge held that Mr. Muhammad Jahangir, Manager of the relevant branch of the Bank, on whose instructions the plaint was drafted and the suit instituted, was having at the relevant time proper power-of-attorney to institute and conduct the suit on behalf of the plaintiff-Bank. The said power-of-attorney given by the Bank authorities, though brought on record but not exhibited, to which this Court could legally refer, in its paragraph 9 contained the authorization to do the things of the nature which were disputed by the appellant.
Similarly, Mr. Dost Muhammad also had in his favour a similar power-of-attorney, which was produced by the learned counsel for the respondent before me, on the basis of which he had the authority to appear in the witness-box to record evidence for the plaintiff-Bank. It is also a matter of common knowledge that a manager of the Bank is always appointed as attorney of the branch he heads to conduct day to day business of the Bank and also to do the things of the nature now disputed. This is a common practice in this trade, of which judicial notice can be taken. For the reasons aforesaid, the finding of the learned trial Judge on issue No, 2 is well founded. The first argument of the learned counsel for the appellant is, therefore, without substance.
11. The second ground urged by the learned counsel for the appellant is equally untenable.
According to the provisions contained in section 176 of the Contract Act it was not essential for the plaintiff-Bank to have first sold the tobacco pledged with it and after adjusting the sale proceeds thereof against the claim to have then sued for the balance amount, if any. The plaintiff-bank had under that section of law the option either to sell the goods pledged with it or to retain them as a collateral security and bring a suit against the pawn or upon the debt. It was only after the goods were sold that the pawner could claim its adjustment against the debt, and not otherwise. In a case of this nature, then the goods were losing price every year, it was also the duty of the pawner to have asked the pawnee to sell the goods or permit him to find customer therefor. No cogent evidence has been led by the appellant to prove that he did make effort in that respect. In these circumstances, the second ground urged by the learned counsel for the appellant, as already said, is without substance.
12. We are now left with the third ground taken up by the learned counsel for the appellant. His argument was that the case of the plaintiff-Bank was based on the documentary evidence brought on record at the trial, which was accepted and relied upon by the learned trial Judge for giving findings on the matter in controversy. His objection was that since the persons who had made the relevant entries in the account books kept by the plaintiff-Bank were not produced in evidence to prove those entries, the same could not be received in evidence by the Court, muchless relied upon. In the same sequence his objection was that since the various promotes and other letters and acknowledgments relating to the debt, in question were also not proved in evidence, repecially when the appellant had denied his signatures thereon, the same could not be relied upon for the purpose of charging the appellant with liability.
13. It is true that mere production of the account books kept by any business concern in regular course of business does not constitute evidence of the entries made therein. Such entries in order to constitute evidence need to be proved by calling the person who made them as a witness in Court. However, there is an exception to this rule in the case of a Bank, to which the Bankers' Books Evidence Act, 1891 applies. Section 4 of this Act allows a certified copy of any entry in a banker's book to be received as prima facie evidence of the existence of such entry and is also admissible as evidence of the matters, transactions and the accounts therein recorded. This, however, does not mean that mere production of such copies in Court would by itself be sufficient to charge a person with liability. Such entries also do require corroboration to make the person liable to pay the amount stated therein. The nature or the extent of the corroboration would, however, depend on the circumstances surrounding each transaction and the reliability of the manner in which the account has been kept. To the extent that the certified copies of the account books produced in evidence by the plaintiff-Bank should not be regarded as evidence in the case, therefore, the arguments of the learned counsel for the appellant are without substance. While taking this view I am supported by the decision of the Supreme Court in Messrs Muhammad Siddiq Muhammad Umar's case (1). The authorities relied upon by the learned counsel for the appellant, being not relevant on the point, are not helpful to the appellant's case. Those cases related to the account books kept by the private persons, firms or companies and not by the Banks. In the case of a Bank, such books and entries made therein, as already said, become admissible in evidence, under section 4 of the Bankers' Books Evidence Act, 1891, by producing certified copies thereof in Court without calling the person who made them in the witness-box to formally prove them. But in the case of a private person, firm or a company no such law is available, with the result that in their case such entries need to be formally proved.
14. The point which now requires to be considered is whether or not there is available on the record the necessary corroboration.
15. The plaintiff-Bank, in addition to placing on record the certified copies of the account books, has brought on record the copies of the pronote dated 20-6-1966, the pronote dated 14-1-1969 and the pronote dated 4-5-1971, alongwith three letters of the relevant dates, and the two original confirmation letters dated 30-6-1970 and 31-12-1972. These documents were produced D at the time of recording the statement of Mr. Dost Muhammad, Manager of the Bank, and were admitted in evidence and duly exhibited without any objection by the opposite side. All these documents were stated to have been signed by the defendant (appellant herein). If any objection respecting the signatures of the defendant (appellant herein) on these documents was to be taken, the same should have been taken at that time, which would have then put the plaintiff Bank on alert to formally prove them. Having not done so at the proper time, the defendant (appellant herein) could neither be permitted to raise such objection at the arguments stage before the learned trial Judge nor before this Court. In this view of the matter I have the support of a Division Bench judgment of this Court in Muhammad Yousaf Khattak's case (2) and also of the Supreme Court in Abdullih's case (3) and Malik Din's case (4). These documents, therefore, stand proved in evidence, as also the signatures of the defendant (appellant herein) thereon. Furthermore, the original promotes dated 20-7-1966 and 14-1-1969 were brought {{FOOTNOTE}}
(1) PLD.1966 SC 684 (2) PLD 1972 Pesh. 175
(3) PLD 1968 SC 140 (4) PLD 1969 SC 136 ' on record by the plaintiff-Bank at the instance of the learned counsel for the defendant (appellant herein). The signatures of the defendant (appellant herein) on these promotes and on the original confirmation letters. Dated 30-6-1970 and 31-12-1972, when compared with his signatures on the written statement, the power-of-attorney given by him to his counsel and his son Noor Habib, the grounds of appeal and other documents filed by him in the lower Court as well as in this Court, even to a naked eye appear to be those of the defendant (appellant herein). I am, therefore, satisfied, and so was the learned trial Judge, that the promotes and the confirmation letters referred to above were duly signed by the defendant (appellant herein) and his denial of the same was nothing but a lie. The defendant (appellant herein), even from the beginning, gave evasive replies in his written statement to the specific allegations made in the plaint by the plaintiff-Bank regarding the execution of the promotes and the letters filed with the plaint, as also above the genuineness of the claim. He, however, in cross-examination, admitted to have received Rs, 20,000 as an advance from the plaintiff-Bank.
16. The promotes and the letters referred to above signed as they were by the defendant (appellant herein), constituted valid acknowledgment of the debt as also the interest accruing thereon and all these acknowledgments were made by the defendant (appellant herein) before the expiry of limitation.
17. To sum up, the evidence brought on record was sufficient to prove that a sum of Rs, 20,000 was advanced as a loan by the plaintiff-Bank to the defendant (appellant herein). This amount and the interest accruing thereon was duly entered in the account books kept by the plaintiff-Bank in the ordinary course of business, which were produced in evidence and duly exhibited. The receipt of the amount and the interest to be charged thereon was duly admitted by the defendant (appellant herein) by executing various promotes and confirmation letters on different dates, which were duly exhibited in evidence without any objection. He also admitted in his cross- examination to have received the sum of Rs, 20,000. The acknowledgments in writing of the debt and the interest, signed by him before the expiry of limitation period and proved in evidence, are on the record. This evidence with no cogent rebuttal, was more than enough to prove the case of the plaintiff-Bank. The learned trial Judge was, therefore, right in deciding issues, Nos. 1, 3 and 8 in favour of the plaintiff-Bank issue No, 5 against the defendant (appellant herein). His findings on all these issues are, therefore, maintained.
18. There being no merit in this appeal, it is hereby dismissal with costs.