' This appeal arises from the judgment dated 5-5-1990 of the learned Additional District Judge, Jhang, whereby the respondent-plaintiffs suit brought under Order XXXVII C.P.C. for recovery of Rs,80,000 under the foot of a pronote dated 27-2-1986 was decreed with costs.
2. Respondent's claim was that the appellant-defendant wanted to shift to Hasilpur, District Bahawalpur in order to live there alongwith his other relatives and that for this reason he agreed to sell his land in dispute situated in Tehsil Chiniot in his favour for a sum of Rs,80,000. He added that he advanced this amount to him in presence of witnesses and that acknowledging the same he executed the pronote. He still further added that the sale had to be completed by 1-4-1988 or else the amount had to be refunded to him. His averment was that the petitioner failed to convey the land or else to refund the amount and hence the suit.
3. The petitioner-defendant sought permission to defend the suit which, of course, was granted to him. He filed the written statement, maintaining that he had been defrauded by the respondent who was quite a clever person and that he obtained the pronote from him fictitiously, fraudulently and without consideration. He prayed for special costs. He also took objection to the maintainability of the suit because of dismissal of a similar suit brought before the Civil Judge, Chiniot much earlier. He also assailed the validity of the pronote for having not been properly stamped.
4. The following issues were framed:--
(1) Whether the promissory note is under stamped, if so, to what extent? O.P.D.
(2) Whether the pronote has not been protested, if so, what effect? O.P.D.
(3) Whether this Court lacks jurisdiction? O.P.D.
(4) Whether the defendant executed pronote dated 27-2-1986 and received Rs,80,000 from the plaintiff? O.P.P.
(5) Whether the promissory note is forged and without consideration? O.P.D.
(6) Whether the defendant is entitled to cost under section 35-A, C.P.C. if so, to what extent? O.P.D.
(7) Whether the suit is barred by doctrine of res judicata? O.P.D.
(8) Whether the plaintiff is entitled to recover the suit amount from the defendant?
(9) Relief.
' The learned Additional District Judge took the view that the pronote Exh. PA. and the accompanying receipt Exh.P.B. were genuinely executed by the appellant after having received Rs,80,000 in connection with the sale of his land and that he was falsely denying execution of the agreement to sell Exh.P.C. Consequently he decreed the suit.
5. Mr. Abdur Rashid Gujjar, Advocate for the appellant contended that all the P.Ws. were either related to the respondent-plaintiff or came from other villages having little occasion to be acquainted with the affairs taking place between the parties. He submitted that Iqbal (P.W.1) was a petition-writer .whereas Muhammad Afzal (P.W.2) was his relation, and that similarly Asghar (P.W.3) was the respondent's own son-in-law having been married to his Pichhlag daughter. Conversely he stressed that the appellant's witness Muhammad Yaqoob was none else than a real brother of the respondent plainitff and that there was no reason to ignore his testimony which totally disproved the entire transaction. He added that there was no mention in the agreement Exh.P.C. if the appellant really intended to shift to Hasilpur after disposing of his land in Tehsil Chiniot and that the plea was no better than a hoax. His next argument was that the receipt Exh.P.B. did not bear a separate thumb-impression, meaning thereby that it was not thoroughly proved to have been executed by the appellant and added that in a similar way no name was indicated in relation to a thumb-impression annexed to the pronote Exh.PA. He was emphatic in stating that the thumb- impressions on Exhs.PA. and P.B. being on the revenue stamps pasted thereon, were not clearly shown to have been affixed by the appellant and that the Court below acted on a surmise in that behalf.
6. As regards payment of a huge amount of Rs,80,000, Mr. Gujjar, Advocate submitted that the respondent had to establish his source of income and that the evidence on the other side disclosed him to be a poor person having lost all his land through river action. Last but not the least was the contention that this case should have been entertained at Chiniot rather than Jhang proper and that the Court deciding it lacked territorial jurisdiction.
7. In reply Sh. Abdul Aziz, Advocate claimed that the suit was filed before the District Judge, Jhang, who had jurisdiction all over the district and could entrust it to any one of the Additional District Judges working in the district. It appears that the plaint was presented before the District Judge and he subsequently entrusted it to the learned Additional District Judge working at the District Headquarter. There was no substance in the plea because the District Judge had jurisdiction all over the district and he was competent to entrust it to any of the Additional District Judges working under his control. Next, counsel submitted that there was no reason to disbelieve the oral testimony and if the appellant was really sanguine about it, he should have taken steps to get the pronote and the receipt examined by a Finger Expert. He emphasized that failure on the part of the appellant to adopt this course heavily suggested genuineness of his thumb-impressions borne on these documents. There was considerable force in the plea. No explanation was offered why the appellant did not take steps to get the opinion of an expert which would have been more decisive and reliable about the veracity of the documents. A presumption would be that the appellant would have failed in getting a favourable report from such an expert. One of the witnesses namely, Iqbal P.W. was a petition-writer practising at Chiniot. No objection cld possibly be taken to his credibility merely because he did not belong to the parties village Sangrey, nor could Muhammad Afzal, P.W. be decried on the ground that he was related to Iqbal (P.W.1). In fact they both appeared to be disinterested persons. Asghar (P.W.3) was claimed to be a son-in-law of the respondent. The latter denied the aforesaid relationship on the ground that Asghar was married only to Pichhlag daughter of his second wife. Assuming this relationship existed between the witness and the respondent, it could not be exploited to the extent of excluding his testimony because both the parties were not only first cousins but till late were married to each other's sisters. Asghar P.W. would, therefore, be treated to be a relation of both. It was not shown if he had anything personal to testify against the appellant. Lately the rule as enunciated in Muhammad Shafi v. The State 1971 SCM R 229 was that mere relationship was no disqualification and that it behoved a party to show that the witness was grinding his own axe. In the absence of such vindication his testimony was par excellence.
8. An attempt was made to establish that the receipt Exh.P.B. did not bear any one's thumb- impression. The suggestion was based upon a misconception. The pronote PA. and the receipt P.B. had adhesive revenue stamps bearing a number of thumb-impressions. Perhaps it was thought better by the petition-writer to obtain thumb-impressions on these stamps rather than vacant portions of the bodies of the documents. The argument was a bit spacious.
9. The testimony of D.W.1 was unnecessarily overstressed. No doubt he was a real brother of the respondent-plaintiff, yet he conceded that he had no good relations with him inasmuch as they had been bound down for keeping peace. He did a little disservice to the appellant in observing that the respondent had enough means to purchase the appellant's land. Further, there was ample evidence to indicate that the appellant's relations were living in Hasilpur suggesting that he too wanted to shift to that side of the country.
10. For all these reasons there was no substance in the appeal and the lc same is dismissed with costs throughout.