' This is a revision petition under section 151, C.P.C. Against the judgment and decree, dated 25-5- 1985 passed by learned Additional District Judge, Gujranwala, whereby the appeal of the defendant was accepted and the suit of the plaintiff was dismissed with costs.
2. The case of the petitioner as per plaint was that the plaintiff/petitioner had filed a suit for the recovery of Rs,14,500 with the allegations that the defendant/respondent had obtained a loan of Rs,14,500 from the plaintiff and executed a pronote on 9-3-1982 in token of the receipt of the amount. It was alleged that the plaintiff had asked the defendant to return the amount but he refused to do so. The defendant resisted the suit on the plea that the pronote and the receipt were the result of fraud and that in fact the defendant had not received any amount from the plaintiff and therefore he was not bound to make the payment. Special costs under section 35-A, P.P.C. Was also demanded.
3'. The learned Civil Judge, Hafizabad framed the following issues:-
(1) Whether the plaintiff has no cause of action and locus standi to file the present suit? OPD.
(2) Whether the suit is liable to be dismissed on the basis of reasons mentioned in para. No,2, of the preliminary objection of the written statement? OPD.
(3) Whether the suit is frivolous and vexatious if so whether the defendant is entitled to, recover special costs under section 35-A, C.P.C.? OPD.
(4) Whether the alleged pronote and receipt were executed between the parties? OPP.
(5) Whether the plaintiff is entitled for decree prayed for? OPP.
(6) Relief.
4. The parties led their respective evidence and the learned Civil Judge decided Issues Nos.4 and 5, in favour of the plaintiff and Issues Nos.1, 2, and 3, against the defendant. And passed a decree of Rs,14,500 leaving the parties to bear their own costs.
5. The defendant/respondent preferred ;al appeal and the learned Additional District Judge reversed the findings on Issues Nos.1, 2, 4 and 5. Issue No,3 was not pressed. As such the finding of the learned Civil Judge on Issue No,3 was maintained and ultimately the appeal was accepted and the impugned judgment and decree of the learned Civil Judge was set aside and the suit was dismissed.
6. Learned counsel for the petitioner has submitted that the findings of the lower Appellate Court that the promissory note was the product of collusion between the petition writer and the plaintiff is based on no evidence and as such unsustainable. He further submitted that the learned lower Appellate Court has misconstrued the provision of section 4 of the Negotiable Instruments Act, 1881 and has committed material irregularity by giving of finding in favour of the defendant and that there was no material that signatures on the promissory note were not of the defendant and that no comparison of the signatures was ever ordered by the trial Court nor any such signatures were made by the defendant. Learned counsel for the petitioner further submitted that the findings on Issues Nos.1 and 2 were reversed by the lower Appellate Court without even discussing them and without giving an independent finding on them. Therefore, the lower Appellate Court had committed material irregularity.
7. On the other hand learned counsel for the respondent has taken the stand that no material irregularity has been committed by the learned Appellate Court.
8. I have given due consider ation to the valuable arguments on both sides and gone through the whole documentary and oral evidence brought on the record.
9. The petitioner/plaintiff examined Abdul Ghaffar (P.W.1) who produced pronote (Exh.P.1) and receipt of Rs,14,500 (Exh.P.2) and the plaintiff Muhammad Azam (P.W.2). The respondent/defendant examined himself as D.W.L Abdul Ghaffar Deed-writer was also examined as (P.W.1). The petition writer Abdul Ghaffar (P.W.1), who deposed that pronote (Exh.P.1) is in his handwriting and in his presence Ghulam Muhammad son of Qadir Bakhsh, caste Joyis had signed on it. He also deposed that the defendant had put his signatures on the revenue stamps and that he had entered it at Serial No,553 in the register and had also obtained signatures of Ghulam Muhammad on the register. He also produced the receipt (Exh.P.2) and deposed that it was in his handwriting and that the amount-was paid by him. He also deposed that the marginal witnesses had also signed in his presence and that one marginal witness was Azhar Yaseen and the other was Maqbool Ahmad. In his cross-examination he deposed that he has no licence nor there is need to have a licence of Deed-writer and that he was doing the business of petition writer since 2-1/2 years. He also deposed that besides this pronote he had scribed many pronotes and also receipts. He admitted it as correct that he had no separate entry for receipts and pronotes in his register and that he had entered both at one and the same number. He explained that he wrote receipt separately and he entered them in the register. He also deposed that on 9th March, 1982 Ghulam Muhammad (D. W.1) and Rana Muhammad Azam (P.W.2) had come to him in the Ihata Tehsil at 9-30 a.m. And they said to him that they had to get a pronote of Rs,14,500 scribed. He also deposed that he asked them to bring the revenue stamps of Rs,10. He also deposed that he couldn't tell the detail of the currency notes, as he had not noted the notes and that he also cannot tell as to who out of the two parties had purchased the revenue stamps from the post office. He further deposed that the pronote was written at the statement of Ghulam Muhammad. He denied the suggestion that no amount was transacted in his presence or that no pronote was written by him or that it was forged and bogus.
The petitioner also appeared in the witness-box (as P.W.2) and deposed that he had advanced Rs,14,500 to the defendant as loan and got a pronote (Exh.P.1) written and that it was scribed by Abdul Ghaffar petition writer and that receipt was also got scribed and that Abdul Ghaffar had got the signature on the stamps affixed on Exh.P.1 and Exh.P.2. He also deposed that petition writer has entered it in the register and that Ghulam Muhammad was literate person. In his cross- examination, he deposed that he, Muhammad Azaz, Ghulam Muhammad, Azhar Yaseen and Maqbool Ahmad all the four had come together and on that date petition writer P.W.1 was sitting in the Ihata of Tehsil. It was about 10 a.m. He admitted in the cross-examination that it was he who had asked the petition writer to write of who wrote on his request. He also deposed that he had counted the amount and then gave it to Azhar Yaseen and Azhar Yaseen gave it to the defendant.
He also deposed that defendant had gone alone to bring the revenue stamps from the post office and had purchased them. He further deposed that there was a bundle of Rs,10,000 and the remaining 4,500 were notes of Rs,100 denominations, He also alined it correct that the marginal witness attool Ahmad was his cousin while Azhar Hussain marginal witness of Exh.P.1 was his friend and Secretary of Union Council and that defendant Ghulam Muhammad was his class-fellow and that they both studied uptil Class 9th together. He further' deposed that it was incorrect to suggest that some amount was given to the defendant as loan. He also stated that it was incorrect to suggest that some pronote was written. He also denied the suggestion that he had given to the defendant from his shop known as 'Commission Agent' in connection with his crops the amount of Rs,2,000. He also denied the suggestion that the pronote was fraudulent and forged or that it was got written fraudulently.
10. The defendant Ghulam Muhammad also appeared in the witness-box as D.W.1 and deposed that he knew plaintiff Rana Azam and that he had not taken any loan from the plaintiff nor had executed any pronote (Exh.P.1) an receipt of pronote (Exh.P.2) bore his signeLares on the revenue stamps but the signatures on either side off the revenue stamps are not his. He explained that he had signed on the revenue stamps as the Secretary Union Council Shaha Jamal had said to him that his Chowkidar had left the job after receiving the pay and new Chowkidar had been engaged and that he should sign as the revenue stamps are to be affixed in the register and that on the saying of the plaintiff he put his signatures on those revenue stamps. He frankly admitted that the revenue stamps were the same but those were not affixed on any paper and that the signatures which are not on the revenue stamps are not his. In his cross-examination, he deposed that he is under matriculate. He also stated that he couldn't read and write. He also stated that he did not remember that he had dictated about the stated facts in the written statement. He further deposed that the counsel had written himself. He also admitted that he had not submitted application about the fraud of the promote. He also denied the receipt of Rs,14,500 in presence of the marginal witness. He also denied the suggestion that proote (Exh.P.1) was genuine and was written on taking loan of Rs,14,500 from the plaintiff. He also denied that pronote was written by Abdul Ghaffar according to his version. He also denied that fraud was committed. Abdul Ghaffar petition writer was again summoned by the learned Civil Judge as Court witness (C.W.1) and produced before the Court the record about the pronote in favour of Rana Muhammad Azam entered at Sr. No,553, dated 9-3-1982.
11. The learned Civil Judge observed that the entry was therefor in the columns of signature. The signature of Ghulam Muhammad defendant were present but there was no thumb-mark while as against Entry No,554 there were three thumb-marks and that the paper being thin the thumb- mark of Hussain Muhammad has become on the back side exactly in the signature of Ghulam Muhammad while in the photo copy obtained by Ghulam Muhammad had appeared as thumb- mark of Ghulam Muhammad and on it Ghulam Muhammad had only signed. The chance was given to both the parties to cross-examine but they did not avail this opportunity,
12. From the perusal of the above evidence, it is crystal clear that the defendant Ghulam Muhammad did not deny his signature on the revenue stamps. His denial that he did not sign beyond the ticket does not appeal to 'reason as the signatures are looking normal of the same person and had it been a signature for the payment of salary it would have been only on two or at the most four tickets. In this view of the matter the execution of promissory note and the receipt are held genuine. The responsibility was on the part of defendant to prove that the promissory note executed by him was without consideration.
13. The relevant law is contained in Chapter XIII of the ,Negotiable Instruments Act, 1881 (XXVI of 1881) lays down Special Rules of Evidence and certain special presumptions; and precludes certain pleas being raised in particular circumstances but beyond the scope of such rules or what may follow as necessary implication thereupon, the applicability of the general principles of law of the ordinary rules of evidence cannot be excluded in claims relating to negotiable instruments. The Special Rules of Evidence laid down in section 118 apply only as between parties to instruments or those claiming under them. In other cases presumptions will only be in terms of Article 129 of the Qunun- e-Shahadat Order, 1984 (P.0.10 of 1984), which is a general provision. Sections 118 and 119 of the Negotiable Instruments Act, 1881 read, as under:-- "118. Presumptions as to negotiable instruments:--(a) of consideration; (b) as to date; (c) as to time Hof acceptance; (d) as to time of transfer; (e) as to order of endorsements; (f) as to stamp; (g) that holder is a holder in due course---until the contrary is proved, the following presumptions shall be made:--
(a) That every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
(b) that every negotiable instrument bearing a date was made or drawn on such date;
(c) that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;
(d) that every transfer of a negotiable instrument was made before its maturity;
(e) that endorsements appearing upon a ' negotiable instrument were made in the ' order in which they appear thereon;
(f) that a lost promissory note, bill of exchange or cheque Was duly stamped;
(g) that the holder of a negotiable instrument is a holder in due course: ' Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration. The burden of proving that the holder is a holder in due course lies upon him.
"119. Presumption on proof of protest.---In a suit upon an instrument which has been dishonoured, the Court shall, on proof of the protest presume the fact of dishonour, unless and until such fact is disproved.
14. In the case of Muhammad Boota v. Faiz Ahmad (1979 SCM R 465), where also the plaintiff had obtained thumb-impression on the promissory note and the defendant had denied the execution of the promissory note and any such consideration received by him as a loan and a civil suit for recovery of Rs,10,000 was brought by the respondent in the Civil Court at Shaiwal the Civil Judge came to the conclusion that plaintiff's statement alone was not sufficient to prove that the defendant had taken a loan from the plaintiff and dismissed the suit. On appeal of the plaintiff the learned Additional District Judge reversed the judgment passed by the trial Court and decreed the suit. A regular second appeal was filed by the defendant before the High Court and the same was dismissed in limine with the observation:--- "... The lower appellate Court had appraised the evidence both documentary as well as oral, in minute details whereas the trial Court had dealt with the matter in an wholly superficial manner, and therefore, no exception could be raised against the judgment of the lower appellate Court and the inference drawn by it from the evidence was reasonable and neither perverse nor arbitrary."
' The matter was agitated before the Hon'ble Supreme Court of Pakistan by way of Civil Petition for Special Leave which was also dismissed with the observation:-- "---On going through the copies of the pleadings and the evidence of the parties produced on this record we have no hesitation in sharing this view with the learned Judge of the High Court. In fact as significantly pointed by the lower Appellate Court Rashid Ahmad (D.W.3) in his cross- examination had admitted the execution of the promissory note by the defendant in favour of the plaintiff through the deed writer. The thumb-impression affixed on the promissory note in dispute was not seriously denied by the defendant and was otherwise sufficiently proved by the evidence of the plaintiff and his witnesses. Indeed the Handwriting Expert (P.W.5) when produced by the plaintiff in support of his case was not at all cross-examined on the point. There could be hardly any doubt as to the execution of the promissory note by the defendant in favour of the plaintiff.
Therefore, under section 119 of the Negotiable Instruments Act, it had devolved on the defendant to prove that the promissory note thus executed by him was without consideration. Apart from the cogent and consistent evidence led by the plaintiff to prove the payment to Rs,10,000 in cash by the plaintiff to the defendant as loan, the latter has miserably failed to discharge the onus of this issue resting on him."
' The present case is also covered by the above precedent. The scriber has been produced, he has been cross-examined. The respondent-defendant admitted his signature on the revenue stamps and could not rebut the same, as such it, is held that the learned Civil Judge has correctly appreciated the evidence on the record while the learned Additional District Judge had neither read the evidence properly nor applied the law, as enunciated by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Boota (supra).
15. For the above reasons, this revision petition is allowed and the impugned judgment and decree, dated 25-5-1985 is set aside and the judgment and decree of the learned Civil Judge, dated 12-2- 1985 is maintained and the suit of the plaintiff is decreed with costs.