' The appellant filed a suit for recovery of Rs,7,200 advanced by him at different times on the basis of vouchers Exhs. P.1 to P.7. Before filing the suit, he served the respondent with a registered notice of demand (Exh. P. 8) on 20-10-1960 through registered A.D. post which did not attract any response and consequently the suit was instituted on 22-4-1961 against Dr. Muhammad Daood Khan who contested the same by denying liability to pay. He took up the position that the advances had not been taken by him in his own name but were taken on behalf of his employer Messrs.', Syed Brothers and they had even been repaid by them through adjustment and settlement of their accounts with the plaintiff. Trial Court framed the following issues:-
(1) Whether the suit is barred under Order II, rule 2, C.P.C.? O.P.D.
(2) Whether the defendant is liable to pay the amount in suit? O.P.P.
(3) Relief.
' During the trial plaintiff examined three witnesses, namely, his own Accountant of the firm, Yaqoob Alam as P.W. 1, Yaqoob Ali Shah as P.W. 2 and Sh. Saleem Ali, Director of the plaintiff's firm himself appeared as P.W.
3. Apart therefrom the plaintiff produced the vouchers Exhs. P.1 to P.7 and a copy of the notice of demand as Exh. P.8 with the postal receipt as Exh. P.9 and the acknowledgment receipt as Exh. P.10.
The defendant's evidence comprised of the statement of Syed Saleem-ud-Din, his employer, recorded as D.W. 1 and he himself appeared as D.W.
2. In his evidence D.W. 1 stated that he had been in receipt of a letter from the plaintiff which he produced as Exh. D.1 and explained that he had long-standing business dealings with the plaintiffs firm but his account with the plaintiff had not been settled. He admitted that the money advanced on the basis of vouchers Exhs. P.2, P.4 and P.5 was received by the defendant on his behalf but he denied knowledge regarding Exhs. P.1, P.3, P.6 and P.7, stating at the same time that the Director of the plaintiff's firm had demanded their amount also from him despite the fact that the money on the basis of all the seven vouchers had been paid in his absence. He went on to state also that his firm had never taken any loan from the plaintiff's firm.
2. After hearing the parties, learned trial Judge decreed the claim in to on 16-9-1963. An appeal filed by the defendant was, however, partly accepted by the learned Additional District Judge, Lahore on 17-4-1965 who maintained the trial Court's decree only for Rs, 4,700, which sum is represented by the vouchers Exhs. P.1 to P.5 but he reversed it to the extent of Rs,2,500 represented by Exhs. P.6 and P.7
3. The plaintiff firm has come up in R.S.A. No, 411 of 1965 wherein the contest is confined to Rs,2,500 disallowed in the appeal below. However, the defendant Dr. Muhammad Daood Khan has filed R.S.A. No, 855 of 1965 to challenge that part of the decree which has been upheld by the learned Additional District Judge to the extent of Rs,4,700. Since the defendant is not present today and, in fact, he has not put in appearance at any stage despite the notices for his personal appearance issued pursuant to the order, dated 22-2-1981, therefore, his R.S.A. No, 855 of 1965 is liable to be dismissed in default and in the other R.S.A., bearing No, 411 of 1965, he is ordered to 'be proceeded ex parte.
4. Learned counsel for the appellant has argued that the learned Additional District Judge has misread the evidence on the record in so far as there are obvious contradictions in paras. No, 6 and 7 of his judgment which have resulted from confusion of evidence of P.W. 3 and D.W. 1 who are name-sakes. The former is Sh. Saleem AR whereas the latter bears the name Syed Saleem-ud-Din.
Thus, he appears to have intermixed the statements of these two witnesses. I have gone through the evidence of P.W. 3 and D.W. 1 with the assistance of the learned counsel and find that his contention is well-founded. Advance ment of the sum in dispute is admitted between the parties and D.W. 1 has stated that it was paid during his absence in Karachi. This is coupled with the fact that the defendant has signed the respective vouchers in token of receipt of the amount from Sh.
Saleem Ah (P.W. 3) with the corresponding inscriptions in the counterfoil, under his own signatures, stating that the amount was a loan and is repayable. This is significant that the defendant had not produced any accounts of his employer firm to corroborate his assertion regarding the amount having been received on their behalf or the same having been accounted for in their accounts. This omission assumes greater importance in view of the fact that the advances of the amount in dispute have been duly proved and even admitted by the defence to have been received.
Thereafter it was for the defendant to account for their utilization. He having failed to do so, a natural presumption arises !pat the money was taken by the defendant on his own account and was also utilized by him personally. In the circumstances, learned Additional District Judge was not justified in reversing a part of the trial Court's decree relating to Exhs. P.6 and P.7.
In view of the foregoing, R.S.A. No, 411 of 1965 is accepted and setting aside the judgment and decree passed in the appeal below, the claim to the extent of Rs, 2,500 is also decreed with the result that the decree passed by the trial Court on 16-9-1963 stands restored in its entirety with costs throughout.