' MUHAMMAD YUNUS SURAKHVI, J.---This appeal, by way of leave of the Court, has been preferred against the judgment and decree passed by the High Court on 3-3-1999, whereby the appeal filed by the appellant, herein, was dismissed and the findings of the District Judge on the basis of which the suit filed by the appellant for recovery of sum of Rs,6,50,000 was dismissed, were maintained.
2. The precise facts, giving rise to the present appeal, are that the plaintiff-appellant filed a suit for recovery of Rs,6,50,000 against the defendants-respondents in the Court of District Judge alleging therein that the defendant-respondent No,1 was running the business in the name and style of Chaudhry Electronics T.V. And Fridge Centre in Raza Commercial Centre, Allama Iqbal Road, Mirpur.
It was averred in the suit that an agreement was entered into between the plaintiff-appellant and respondent No, 1 on 22-3-1994 creating a partnership between the parties. Consequently, the plaintiff-appellant advanced the aforesaid amount to defendant No,1 through a Bank Draft No,DDP 0016127 on 22-3-1994, from Union Bank, Mirpur, for the extension of his business. The appellant and respondent No,1 in the light of this partnership deed became shareholders in the said business and were equally entitled to the profit and loss of the same on the daily basis. The partnership deed was executed by them till 31-8-1994. In the meantime the shop in which the business was carried on was attached. On the application of Yaqoob Ahmed, respondent No,2, who happens to be the real brother of respondent No,1, the said shop was released by the Revenue Assistant, Magistrate 1st Class, Mirpur on 4-4-1995. The plaintiff-appellant moved an application for impleading Yaqoob Ahmed as defendant No,2 and similarly Yaqoob Ahmed also moved an application for impleading him as defendant No,2 in the suit. Consequently, he was impleaded in the original, suit as defendant No,2. The defendant-respondent No,1 was proceeded ex parte by the trial Court on 8-8- 1995. However, respondent No,2 filed his written statement on September, 1995. The trial Court after taking necessary proceedings framed as many as seven issues including one for relief. The plaintiff besides himself produced Kh. Abdul Qayyum as his witness who proved the execution of document Exh.P.A, the alleged agreement, as its marginal witness, wherein his signatures were affixed as P.A/1.
The defendant-respondent No,2 got his statement recorded and also tendered in evidence the decision of Revenue Assistant, Magistrate 1st Class Mirpur as Exh.DA. After the conclusion of trial, the suit of plaintiff-appellant was dismissed by the trial Court vide the judgment and decree dated 31- 3-1998. On appeal the findings recorded by the District Judge were affirmed and the suit was held to be dismissed by the High Court. Hence this appeal with the leave of the Court.
3. Mr. Abdul Majid Mallick, the learned counsel for the appellant, vehemently contended that the trial Court as well as the High Court have committed error in holding that the partnership deed was not admissible in evidence as being unregistered. The learned counsel has contended that the said partnership deed was admissible in evidence to prove the collateral fact of advancing the disputed amount to respondent No,1 especially so when the execution of the same was not denied by respondent No,1 and was proved by producing one of its marginal witnesses. The learned counsel also maintained that in fact it was an agreement entered into between the parties, wherein the terms and conditions were settled down and in view of its terms the appellant advanced a sum of Rs,6,50,000 to respondent No,1. The learned counsel has further argued that assuming for the sake of argument that respondent No,1 was not running the said business, the plaintiff-appellant was still entitled to recovery of amount which was paid to respondent No,1 through Bank Draft and at the most if it is held that he did not run the business in pursuance of agreement, he may be exempted from paying the profit to the plaintiff, but he could not be exempted from paying back the principal amount to the plaintiff-appellant.
4. In reply Ch. Muhammad Siddique, the learned counsel for respondent No,2, has argued that the commercial venture is and was in the ownership of Yaqoob Ahmed, respondent No,2, and the alleged amount was not received by him. He stated that although Mehmood Ahmed, respondent No,1, has been proceeded ex parte, yet if the suit is decreed against him the aforesaid commercial venture or for that matter Yaqoob Ahmed would be adversely affected because in case of decree the goods belonging to Yaqoob Ahmed might be attached. Thus, the learned counsel has argued that it is not proved on record that any amount was received either by Mehmood Ahmed or by Yaqoob Ahmed, respondents Nos.1 and 2. The learned counsel also strenuously argued that it is settled principle of law that the evidence produced by a party must conform to its pleading and if the evidence runs counter to its pleading no relief could be given to that party. The learned counsel also stressed that a decree is to be given to a party in accordance with its pleading and not outside the scope of the pleading.
5. After hearing the respective contentions of the learned counsel for the parties, it may be stated that the trial Court as well as the High Court dismissed the suit of the plaintiff appellant mainly on the following grounds:--
(i) that the partnership deed is an unregistered document. It was attested by the Additional Deputy Commissioner General on March, 22, 1994. There were two marginal witnesses of this document out of them one was produced in the Court. According to this witness the terms and conditions were not settled by the parties in his presence;
(ii) that according to the plaintiff the amount was paid to defendant No,1 for extension of business which he was running in the name and style of Chaudhry Electronics T.V. And Fridge Centre in Raza Commercial Centre, Allama Iqbal Road, Mirpur. There is no evidence on record to support this ground that defendant-respondent No,1 had any link with the business being run in the name and style of Chaudhry Electronics T.V. And Fridge Centre;
(iii) that the Bank Draft Exh.PB does not appear in the name of respondent No,1 nor it is proved that he received the amount of this Bank Draft;
(iv) that the Bank Draft Exh.PB is in the name of United Refrigeration (Pvt.) Ltd. There is no proof on record that Mehmood Ahmed, respondent No,1, had any link with United Refrigeration (Pvt.) Ltd.; and
(v) that the evidence of plaintiff appellant is totally opposed to the contents of his suit.
6. We have given our dispassionate thought to the arguments 'advanced at the Bar and perused the evidence brought on record with utmost care. In our view the trial Court as well as the High Court have committed a patent error in dismissing the suit by observing that the plaintiff- appellant failed to prove his case against respondent No, 1 . The evidence of Kh. Abdul Qayyum, the marginal witness of the agreement Exh.PA, has been discarded by the High Court mainly on the ground that the terms and conditions of agreement were not settled by the parties in presence of this witness. The above fact shows a totally faulty approach in appraisal of evidence on the part of High Court. The aforesaid witness has stated that the document Exh.PA (the agreement) was executed in his presence and in pursuance of the agreement an amount of Rs,6,50,000 in the shape of draft was advanced to respondent No,1 for the extension of his business. The witness stated that he is the marginal witness of the document Exh.PA and his signatures over the document were affixed as Exh.PA/1. This witness never stated that the terms and conditio were not settled by the parties in his presence. What in fact he has deposed is that when the terms and conditions were settled between the plaintiff and respondent No,1, the defendant No,2 was not present over there. He further stated that when the terms and conditions of agreement were settled orally between the parties he was not present at that time but we cannot stretch from the deposition of the witness that at the time of execution of document Exh.PA the terms and conditions of the agreement were not settled in his presence, as he stated with clarity in his examination-in-chief that the document Exh.PA was executed in his presence and in pursuance of it The plaintiff had advanced Rs,6,50,000 to defendant No,1 through a Bank Draft for the extension of his business. The plaintiff himself has also asserted in his statement that defendant No,1 wanted to extend his business in consequence of which an agreement Exh.PA was entered into between the parties. The plaintiff further stated that in pursuance of this agreement he advanced an amount of Rs,6,50,000 through a Bank Draft No,D.D.P. 0016127 on 22-3-1994, to defendant No,1 and the attested copy of Bank Draft Exh.PB was produced by the plaintiff before the Court. In our view the High Court failed to appraise the evidence in its true perspective and dismissed the suit of the plaintiff on flimsy and artificial grounds which could not be made basis for the dismissal of the suit. In civil cases unlike the criminal cases the plaintiff has not to prove his case against his opponent beyond any reasonable shadow of doubt. On the other hand if the preponderance or probability of evidence is in favour of a particular party that party is likely to succeed. In our view the initial burden of proof of the material Issues No,2 to 4 was on the plaintiff who successfully discharged the same and it shifted upon defendant. No,1 who was to rebut the same but in rebuttal we found no evidence on behalf of defendant No,1 as he did not opt to appear in the Court. Needless to say that the statement of defendant 1V0.2 is neither relevant nor Sufficient to rebut the burden of proof initially discharged by the plaintiff. It is correct that initial burden of proof in a case is always on the plaintiff, but if the plaintiff discharges that onus and makes out a case which entitles him to relief, the onus shifts on the defendant to prove the circumstances, if any, which disentitle the plaintiff to that relief. It is not always easy to determine as to what particular point it shifts from the plaintiff to defendant as evidence gradually continues to be adduced but at the conclusion of trial when the issues come to be judged it has to be seen whether the initial onus which Article 118 of Qanoon-e- Shadat casts upon plaintiff has been discharged or not. In the case in hand it was for defendant No,1 to rebut the initial burden of proof which was discharged by the plaintiff. It was for defendant No,1 to rebut the evidence produced by the plaintiff and to assert that he did not execute the document Exh.PA or his signatures over the said document were fictitiously affixed. It was also for the defendant to rebut that the alleged bank draft was not cashed and used by him. In the normal course of events a bank draft is always prepared when the money is available in the bank but as said earlier, defendant No,1 never opted to appear in the Court nor produced any evidence in rebuttal of the issues.
7. The High Court has also observed that the agreement (partnership deed) is unregistered document; thus in its view no weight could be attached to the said document. In the first instance it may be stated that the agreement entered into between the parties strictly speaking is not a partnership deed as construed by the High Court, it rather appears to be an agreement wherein certain conditions were settled between the parties and in pursuance of which the plaintiff advanced the disputed amount to respondent No,l. Secondly, it was not at all necessary to get this document registered as through this document no immovable property of the value more than one hundred rupees was transferred by the executant in favour of respondent No,1 and lastly even if it had been essential to get this document registered it would be admissible for the collateral purpose of advancing money by the plaintiff to defendant-respondent No,1, but. All these aspects of the case were not taken into consideration either by the trial Court or by the High Court. The High Court has laid much stress on the point that the plaintiff could not prove that the amount was paid to respondent No,1 for the extension of business which he was running in the name and style of Chaudhry Electronics T.V. And Fridge Centre. It was further opined that there was no evidence on record to support the version that defendant-respondent No,1 had any link with the business being run in the name and style of Chaudhry Electronics T.V. And Fridge Centre. After careful perusal of the evidence brought on record by the plaintiff we are of the view that even the statement of plaintiff alone is sufficient to believe that defendant No,1 was running the business in the name and style of Chaudhry Electronics T.V. And Fridge Centre and the amount was advanced to him only for the extension of the aforesaid business. The plaintiff-appellant, according to averment made in the plaint in his statement deposed before the Court proved that a bank draft bearing No,DDP. 0016127 of the amount of Rs,6,50,000 was advanced to defendant No,1 which exactly tallies with the number mentioned in the plaint. In the agreement Exh.PA there is a clear admission on the part of defendant No,1 that he received an amount of Rs,6,50,000 from the plaintiff through a bank draft No,DDP 0016127 dated 22-3-1994 for the extension of his business of air-conditioning and refrigeration. There is also a stipulation in the agreement to the effect that if defendant No,1 failed to abide by the terms of the agreement till 31-8-1994, he would be liable to pay back the amount advanced at once. Thus, it was for the defendant to rebut that the bank draft advanced was not cashed by him and that he was not running the business in the aforesaid name. The High Court also observed that the evidence of plaintiff-appellant was totally opposed to the .Contents of his suit but no reason whatsoever was advanced as to how the evidence of plaintiff was in conflict with his averments in the plaint. As we have already observed that the plaintiff and his witness Abdul Qayyum have proved the case of plaintiff by their statements and have initially discharged the burden of issues placed on the plaintiff, it was for defendant No,1 to rebut the evidence but he failed to do so. In this view of the matter on the basis of material brought on record the plaintiff is liable to get the requisite relief prayed for.
8. The High Court also fell in error in observing that the agreement in question being not registered was not admissible in evidence. As said somewhere in previous part of this judgment that a contract to pay does not necessarily require a writing. Our aforesaid view is supported by a case reported as Bajranglal Maniram Singhvi Agarwal v. Anandilal Ramchandra Potadar and another (AIR 1944 Nagpur 124) wherein it was observed as under:-- "A contract to pay does not require writing and the mere fact that no oral evidence has been adduced by the parties is also not enough to enable us to come to the conclusion that there was no agreement by the appellant to pay the amount due from him towards the loss."
9. The High Court has also held that there is no proof on the record that respondent Mehmood Ahmed had in fact received the disputed amount because the Bank Draft, Exh.PB was in the name of United Refrigeration (Pvt.) Ltd. The actual position about the Bank Draft is that it was issued by the Union Bank Limited, Allama Iqbal Road, Mirpur and was addressed to Muslim Commercial Bank, Bank Square Branch, Rawalpindi and the amount was to be paid to United Refrigeration (Pvt.) Ltd. It is obvious that the Bank Draft was to be paid to Unite Refrigeration (Pvt.) Ltd. In return of air conditioners and fridges. The serial number of the draft, its date and the amount of. Rs,6,50,000 are duly mentioned in Exh.PA. It is stated in Exh.PA that Bank Draft, mentioned above, copy of which is Exh.PB, was received by respondent No,1 from the appellant. It is also mentioned that this amount will be spent on purchasing air conditioners and fridges and will not be used for any other purpose.
We take judicial notice of the fact that a bank draft is prepared on cash payment. Therefore when respondent No,1 received the aforesaid bank draft, Exh.PB, from the appellant it was, equal to receiving cash amount of Rs,6,50,000 unless it is proved that the bank draft was not actually encashed by United Refrigeration (Pvt.) Ltd. This was the responsibility of respondent No,1 to prove non-payment.
10. In our view the approach adopted by the High Court that the appellant was not entitled to a decree without proving that Chaudhry Electronics T.V. And Fridge Centre was owned by respondent No,1 was not correct. Evidence on record, particularly Exh.PA, shows that respondent No,1 obtained money through bank draft from the appellant for extension of his business. Therefore it is clear that he made the appellant believe that he was the owner of the business. Therefore, he is bound by that statement and is estopped from pleading anything to the contrary. Even otherwise it is not important whether respondent No,1 did really own the business or not what is important is that he obtained money from the appellant and promised to pay it back alongwith profit. He was, therefore, bound to return the money.
11. We are simply amazed to note that respondent No,2 who happens to be the real brother of respondent No,1 has been zealously watching the interest of respondent No,1 and he claims himself to be the runner of business in the name and style of Chaudhry Electronics T.V. And Fridge Centre.
We have also taken note of the fact that right from the very beginning defendant No,1 disappeared and did not opt to contest the case: Even in this Court he was served with a notice when the appeal was filed by the appellant but despite service respondent No,1 absented himself. This also shows that both the brothers were prima facie running their business in the name and style of Chaudhry Electronics T.V. And Fridge Centre and in order to avoid the consequences of the decree manoeuvred for the disappearance of defendant-respondent No, 1 .
12. In the light of what has been stated above, we set aside the impugned judgment and decree of the High Court as well as those of the District Judge and pass a decree for the payment of an amount of Rs,6,50,000 in favour of plaintiff-appellant against defendant-respondent No,1, without any order as to costs.