This regular first appeal is directed against the judgment and decree dated 23-11-1992 passed by the learned Additional District Judge, Okara, whereby the petitioner's suit under Order XXXVII C.P.C. seeking to recover an amount of Rs,24,000 was dismissed by the said learned Additional District Judge.
2. The petitioner's suit under Order XXXVII C.P.C. seeking to recover an amount of Rs,24,000 allegedly advanced as loan to the respondent proceeded on the ground that the respondent being a friend was advanced an amount of Rs,24,000 vide promissory note dated 15-1-1990. It was submitted that the amount was advanced for a period of three months but the respondent refused to repay the same, hence the suit.
3. The respondent sought leave to appear and defend the suit and having obtained the same proceeded to contest the suit on the ground that he had neither taken any loan from the petitioner nor executed any promissory note and that the real motive for concocting and preparing the said promissory note is to usurp the residential Ahata of the respondent.
4. The learned Additional District Judge reflected the controversy between the parties in the following issues:-- (1)Whether the plaintiff is entitled to get a decree of Rs,24,000 against the defendant on the basis of a pronote dated 15-1-1990? OPP.
(2)Whether the suit is vexatious and fraudulent, if so, to what extent the defendant is entitled to special costs? OPD.
(3)Relief.
5. The suit was actively contested between the parties wherein the petitioner examined two witnesses i,e, scribe of pronote and a witness of the receipt executed alongwith the pronote and examined himself as P.W.1 while the respondent appeared as his own witness. The documentary evidence produced by the petitioner consisted of a pronote (Exh.P.1) and the receipt attached therewith (Exh.P.2) while the respondent did not produce any evidence.
6. The learned Additional District Judge having appraised the evidence on the record proceeded to dismiss the suit mainly on the ground that the evidence produced by the petitioner was not at all confidence inspiring inasmuch as none of the witnesses belonged to the village where the parties were residing and that it was not proved on the record that the respondent was an educated person and could not sign in English. It was also observed that the receipt attached with the pronote could only be proved by producing the two attesting witnesses and since the scribe had not signed the receipt therefore, he could not be treated as an attesting witness of the said receipt.
In the circumstances, the receipt attached with the promissory note was also held to have not been proved. The factum that the parties being Christian, yet no Christian had signed the receipt attached with the pronote as a witness also weighed with the learned Additional District Judge to hold that the execution of the pronote and the receipt was doubtful.
7. At the hearing, learned counsel for the appellant contended that the respondent was an educated person and had studied in a school. An attempt was also made to produce some certificate thereby certifying that the respondent had in fact studied upto a certain standard. The precise submission was to the effect that the plea that the respondent was an uneducated person, therefore, he could not sign in English and that the signatures on the pronote were forged by the appellant was not correct. I am afraid, the argument as also attempt on the part of the learned counsel for the appellant to produce the certificate thereby evidencing that the respondent had taken education upto certain level was absolutely futile inasmuch as the said certificate was not produced before the learned trial Court nor any effort was made to produce and prove the same before this Court by way of additional evidence. The respondent having denied the execution of the pronote as also the receipt, the appellant should have been wise enough to produce hand writing expert to rebut the same or atleast made an effort to bring on record some document thereby evidencing that the respondent could also sign in English. In the absence of such a proof, I am left with the signatures of the respondent in Urdu as appended on the application seeking leave to appear and defend the suit as also the thumb impression on the power of attorney. The admitted signatures of the respondent, as are available on the record, cannot possibly be compared with that of the alleged English signatures of the respondent as appended on the pronote as also the receipt attached therewith. It is, no doubt, well settled that a pronote is not required to be attested by any witness but it is equally true that the receipt attached therewith to be effective must be attested by two witnesses and that the said witnesses be produced to prove the same. In the instant case, only one attesting witness had been examined while the other attesting witness, who is stated to be a resident of the same village, has not been examined although a reference to his being present at the time of his executing the pronote as also the attestation of the receipt attached therewith has been made by the other attesting witness i,e, P.W.2. This omission on the part of the appellant is almost fatal in so far as proof of the promissory note is concerned. It has been rightly observed by the learned Additional District Judge that the scribe of a document cannot be treated to be an attesting witness particularly when he had not signed the document itself.
8. The case is more or less of appreciation of evidence which has been correctly done by the learned Additional District Judge and I am not persuaded to differ with the findings arrived at by the learned Additional District Judge many case no misreading or non-reading of the record was pointed out. In the circumstances, learned counsel for the appellant had failed to point out any legal infirmity in the judgment rendered by the learned Additional District Judge. In result, this appeal is dismissed with no order as to costs.