' This appeal is directed against the judgment and decree of District Judge, Karachi, dated 3rd April, 1974, whereby the respondent's suit for Rs, 5,000 was decreed. The defence of the appellant was that he had paid Rs, 5,000 which he had taken on loan from the respondent and that respondent had executed a receipt in acknowledgment of the same on 2-3-1964 in presence of witnesses. The issue was whether the plaintiff had been paid the suit money. The defendant/appellant Muhammad Younus had examined himself and deposed that he had paid the amount of Rs, 5,000 to the respondent. He was not cross-examined by the respondent as the respondent counsel had no instructions. He had produced the receipt Exh. 6 alleged to be signed by Sultan Ahmad Batla.
Muhammad Younus had deposed that he had sent a letter to his bankers that the cheque which had been issued by him should not be cashed. Same is Exh.
7. This appellant was cross-examined by the Court and he stated that the plaintiff had presented the cheque on 4-10-1963 but it was dishonored by the bank and that he had only Rs, 50 in the bank in September and October, 1963. He admittted in cross-examination that he had taken Rs, 5,000 from the plaintiff as a loan. He was supported by Anwarul Haq, P.W.2, who stated that plaintiff was his cousin and that defendant had borrowed Rs, 5,000 from plaintiff in September, 1963 but he had returned the amount in March 1964 in his office and plaintiff issued receipt Exh. 6 under his signature. He identified Exh. 6 as the same receipt. He was also not cross-examined by the plaintiff as the plaintiff had not given instructions to the counsel. The suit of the plaintiff was decreed but no appeal by the present appellant to the High Court the decree was set aside and the matter was remanded back to the District Judge under Order XLI, rule 28, C.P.C. By order dated 30th January, 1974 in I.A. No, 62/67. The Division Bench of this Court had decided the appeal and it was of the view that the sworn testimony of the witness of appellant and Anwarul Haq regarding repayment of the loan, taken by the appellant, and the execution by the respondent of the receipt No,
6. Such testimony should not have been discarded on the basis of minor difference found between the signature on the receipt and the admitted signature of the respondent or by reason of the fact that witness Anwarul Haq has business relations with the appellant. Therefore, opportunity was afforded to the respondent to rebut the evidences which had been brought on record by the respondent and the respondent was also afforded an opportunity of examining the second attesting witness of the receipt Exh.
6.
2. Thereafter, the evidence of Sultan Ahmad, respondent, was recovered who denied the execution of Exh. 6 and stated that he had not received any money from the defendant. He stated that he had strained relations with Anwar Ahmad but the nature of strained relationship was not disclosed.
He produced the letter from the bank which showed that the cheque of the defendant had been dishonored with the remark referred to drawer. This memo. From the bank is accompanied with the Cheque of defendant dated 4-10-1963. As against the defendant in his earlier examination had produced a letter from his bankers dated 26-3-1964 Exh. 7 which showed that the defendant Muhammad Younus has informed his bankers as early as 23-6-1964 that the payment of cheque No, SAJ 7229 for Rs, 5,000 should be stopped.
3. The appellant examined Ferozur Rehman who stated that the plaintiff was his maternal uncle and he knew the defendant as well and that Anwarullah was also his maternal uncle. He stated that the defendant had paid Rs, 5,000 to respondent about 9 or 10 years back in the office of Anwarullah and the plaintiff had signed Exh. 6 in his presence and he had also signed it as attesting witness. This witness was cross-examined on behalf of the plaintiff. He did not remember as to whether the loan given by plaintiff to defendant was cashed. He admitted that he had not been to the house of the plaintiff for the last three years but he added voluntarily that he had not been to the house of another maternal uncle Anwarullah for the last two years, He also asserted that he used to act as broker for plaintiff also. He denied that money was never paid by defendant in his presence. No dispute between this witness and the plaintiff was brought on record in cross- examination of this witness Ferozur Rehman.
4. The learned District Judge instead of merely recording the evidence and sending back the file to the High Court, disposed of the case himself by decreeing the suit of the plaintiff again. His view was that there was only the word of the plaintiff against that of the defendant and that there was some discrepancy in the disputed signature of plaintiff on Exh. 6, with his admitted signatures on Exh.
13. He discarded the testimony of Ferozur Rehman on the ground that Ferozur Rehman had not been going to the house of the plaintiff for the last three years and he also discarded the testimony of Anwarul Haq as it had remained unchallenged due to the fact that the plaintiff and his Advocate were sent at the time when the deposition was recorded.
I have not been able to see the force of the argument that the testimony of a witness has to be discarded merely because the other side has failed to cross-examine him. In fact the failure of the other party to cross-examine a witness should be reason of accepting his testimony rather than of rejecting it. Moreover, nothing substantial has been brought about by the plaintiff/respondent in the cross-examination of Ferozur Rehman to suggest that there was really any dispute between the plaintiff and that witness. In fact the observation of Ferozur Rehman that he had acted as broker for plaintiff as well, was not seriously questioned by the plaintiff and, therefore, there was hardly any justification to disbelieve Ferozur Rehman.
5. In fact relationship between Anwarul Haq and respondent is established that they were cousins and plaintiff/respondent was not able to point out any dispute which existed between him and Anwarul Haq which could have promoted Anwarul Haq to give a false statement against his own cousin. Similarly statement of Ferozur Rehman that he was nephew of respondent was not challenged and, therefore, in view of the fact that no dispute of any specific nature between Ferozur Rehman and respondent was brought in the cross-examination, it would have been apt and proper to 'believe the testimony of Ferozur Rehman.
6. The result is that as against a mere word of respondent Sultan Ahmed that he had not executed Exh. 6 there is a word from Muhammad Younus that respondent had executed Exh. 6 after he had been paid Rs,5,000 and the same is supported by sworn testimony of two relations of respondent, namely, Anwarul Haq and Feorzur Rehman, who are the attesting witnesses of Exh.
6. I also find that the appellant has produced Exh.7 from his banker showing that as early as 26-3- 1964 he had stopped the payment of the cheque of Rs,5,000 given in favour of respondent. This tallys with the factum that Exh. 6 was executed on 2-3-1964 and the respondent had taken time to return the cheque of the defendant which was post-dated for 4-10-1963, and therefore, on failure of the respondent to return the cheque, the appellant had stopped payment of the cheque.
7. It, therefore, appears to me that the case put up by the defendant/appellant had been more plausible and was proved on record.
I have seen the disputed signature of respondent on Exh. And his signatures on the plaint as well as on Exh. 13 and I find the apart from a discrepancy in the writing of letter "a" after the letter "S" there is hardly any difference in the disputed and admitted signatures. And consequently I am of the view that the decree in this case was uncalled for and, therefore, the same is hereby set aside and the still of the respondent is hereby dismissed and the decree is reversed with no order as to costs.
' The money deposited by the appellant in this Court towards the decrial amount is ordered to be refunded to him.