KHALID PAUL KHWAJA, J.-- This is an appeal against the judgment and decree dated 3-5-1990 whereby the learned Addl. District Judge, Sargodha dismissed the appellant's suit under Order XXXVH, C.P.C, for the recovery of Rs.25,000 against the respondent on the basis of a promissory note dated 6-4- 1988.
2. The relevant facts which gave rise to the present appeal are that on 2- 12-1989, Mirza Arif Baig appellant instituted a suit under Order XXXVII, C.P.C, against Mubarik Ali Khan respondent for the recovery of Rs.25,000. It was asserted that the relations between the parties were cordial on account of which on 6-4-1988 the respondent borrowed a sum of Rs.25,000 from the appellant and after receiving the said money in the presence of the witnesses executed a promissory note. He promised to re-pay the loan after six months but when the said amount was demanded from him, he refused to pay as a result of which the appellant was constrained to institute the present suit.
3. The respondent was permitted to appear and defend the suit, he filed his written statement and denied having executed the promissory note in question. He also denied having received any money from the appellant under the said document which, according to him, was fake and fictitious.
4. On the pleadings of the parties, the following issues were framed:-
(i) Whether pronote dated 6-4-1988 was executed by the defendant with consideration in favour of the plaintiff? OPP.
(ii) Relief.
5. The parties adduced their evidence on the above issues. After considering the said evidence, the learned Addl. District Judge, who was seized of the matter, dismissed the suit vide the impugned judgment and decree. Feeling aggrieved, the appellant has come up in appeal.
6. I have heard the parties' learned counsel and have also gone through the record with their assistance.
7. Perusal of the impugned judgment shows that the learned trial Court had dismissed the suit on the following grounds:
(1) that the payment of consideration had not been proved because the attesting witnesses of the receipt and pronote had not been examined under Article 79 of the Qanun-e-Shahadat Order;
(2) that the alleged signature of the respondent which appear on the pronote in question does not tally with his signatures on the written statement and the power of attorney; and
(3) that the appellant's evidence was contradictory and unreliable.
8. Learned counsel for the appellant has contended that the learned trial Court had misread the evidence and had misapplied the law and thus had come to incorrect conclusions. On the other hand learned counsel for the respondent has conceded that the provisions of section 79 of the Qanun-e-Shahadat Order were not applicable in the present case but maintained that the suit had been rightly dismissed by the learned trial Court whose findings were amply supported by evidence on record.
9. Mirza Arif Baig appellant appeared as PW-3 before the trial Court and stated that the payment of consideration was made to Mubarik Ali Khan respondent at the time of the execution of the pronote Exh. P-A. Muhammad Shafi stamp vendor/deed-writer appeared as PW-1 and stated that he had scribed the pronote in question with the consent of the parties and that Mubarik Ali respondent had signed the said pronote in his presence. He, however, stated that no payment was made in his presence. Intizar Hussain PW-2, who in fact is the attesting witness of the receipt (not exhibited), has stated that he had signed the pronote in question as its attesting witness and that at the time of the execution of the pronote a consideration of Rs.25,000 had been paid by the appellant to the respondent. He further stated that the respondent had signed the pronote in his presence. On the other hand Mubarik Ali respondent appeared as DW-3 and categorically denied having executed any pronote in favour of the appellant. He further denied having received any amount from him under the said document. Muhammad Ishtiaq DW-1 and Muhammad Siddique DW-2 supported him.
10. The pronote in question is Exh. P-A. It purports to have been executed on the 6th of April, 1988.
The*accompanying receipt is attested by Intizar Hussain PW-2 and Karam Elahi Qureshi (not examined). The signature of Intizar Hussain aforesaid on the said receipt has been exhibited as PW-2/1 but the receipt has not been exhibited. In fact none of the PWs has said a word about the execution of the said receipt. Learned counsel for the respondent has rightly submitted that where payment of consideration was evidenced by a document only that document would be considered as the proof of such consideration and no oral evidence would be admissible and in the present case the failure of the appellant to prove the receipt in question would lead to the irresistible conclusion that payment of consideration had not been proved. According to the appellant the pronote was executed and the payment of consideration was made in the same sitting. However, the other two witnesses materially contradict each other on this point. According to Muhammad Shafi PW-1, the scribe of the pronote, no payment was made in his presence while according to Intizar Hussain PW-2, the attesting witness of the receipt, the payment was made at the time of the execution of the pronote. This contradiction is irreconcilable and is indicative of the fact that the witnesses are unreliable and undependable. Further, Intizar Hussain PW-2 has insisted that the pronote in question was executed on Friday. The calendar, however, contradicts him, according to which it was Wednesday on 6th April, 1988. According to the particulars of Intizar Hussain PW-2, given in the receipt, he was the resident of House No.3-5-58 Block No.5 Sargodha.
The appellant in his statement as PW-3 has stated that his brother Mirza Waseem Baig had brought Intizar Hussain aforesaid from his house in Block No.5. However, Intizar Hussain PW-2 in his statement categorically stated that since 1987 he was residing in Iqbal Colony Sargodha. Learned counsel for the respondent has vehemently maintained that the incorrect address of Intizar Hussain PW-2 on the receipt in question clearly indicates that the two documents were fake and fabricated. Had Intizar Hussain PW-2 been present at the time of the execution of the documents, learned counsel asserted, his incorrect address would not have been entered in the document in question.
11. The respondent had categorically denied his signatures on the pronote and receipt in question.
Disputed signatures alongwith admitted signatures of the respondent were not sent to any handwriting expert and therefore, the learned trial Court has given its own observation about the genuineness of the disputed signatures. I have also seen with care the alleged signatures of the respondent on the pronote and the receipt in question and have compared them with his signatures on the written statement and the Vakalatnama. The dissimilarity between the aforesaid two kinds of signatures is not very inconspicuous. Letters 'M' 'a' and 'k' in the signature 'MA Khan' are not similar. When the parties had not brought forward any expert witness to give opinion about the genuineness of the signatures in question, the learned trial Court was competent to form its own opinion by comparing the disputed signatures with the admitted signatures. The opinion which it has formed in the present case appears to be quite justified.
12. Learned counsel for the respondent has raised serious objection to the admissibility of the pronote in question and has urged that the same should not be considered as valid evidence. His objection is that two of the adhesive stamps affixed on the pronote have not been cancelled and thus the document is rendered inadmissible in evidence. This objection is factually correct. The pronote bears 25 adhesive stamps of the denomination of paisas 40 each out of which two stamps have not been cancelled. It is the consistent view of this Court that where all the adhesive stamps on a pronote are not cancelled the document is rendered inadmissible in evidence and decree cannot be passed on the basis of the said document even if the defendant admits his liability. In this connection decisions of this Court in Firm Sri Chand Sheo Parshad Vs. Lajja Ram (AIR 1939 Lahore 31 (DB), Sohan Lai Nihal Chand Vs. Raghu Nath Singh and others (SIR 1934 Lahore 606 (D.B.), Sheikhupura Central Cooperative Bank Ltd. Vs. Ch. Tawakkal Ullah and another (PLD 1988 Lahore 225 (D.B.) have been relied upon. Learned counsel for the appellant on the other hand has not ben able to cite any authority either of this Court or of the Supreme Court wherein a contrary view had been taken. I, therefore, have no hesitation in holding that the pronote in question is inadmissible in evidence and no decree could be passed in favour of the appellant against the respondent on the basis of the said pronote.
13. In view of the above discussion it is held that the evidence led by the appellant in support of his claim was not worthy of reliance, that the signatures on the pronote and receipt in question purporting to be those of the respondent were not genuine and that the pronote in question was inadmissible in evidence on account of the fact that stamps affixed thereon had not been duly cancelled. The learned trial Court was, therefore, perfectly justified in dismissing the appellant's suit.
There is no merit in this appeal which is also dismissed with costs.