1. By this single judgment I propose to dispose of abovesaid two suits as parties and the points to be determined in both the suits are same.
2. Briefly, the facts of Suit No.68 of 2001, as per contents of the plaint, are that plaintiffs' father namely late Commodore S. Azhar in his life time purchased plot No.62, Khayaban-e-Ittehad, Phase VII, D.H.A., Karachi measuring 2000 sq. Yards through Defendant No.1 who was known to him and was dealing in estate business. The sale consideration was paid through Defendant No.1, Salim Akhtar Khan. After the death of plaintiffs' father. Defendant No.1 approached defendant No.2 who is mother of the plaintiffs and suggested that in order to attain life ambition and desire of plaintiffs late father to build house for his every child, the abovesaid plot be sold and out of the sale proceeds, two plots each measuring 1000 sq. Yards be purchased as an interim measure pending purchase of four separate plots for the four plaintiffs. Due to confidence, the plaintiffs had developed, they and their mother agreed to the said proposal. Accordingly 'defendant No.1 after selling the said plot, purchased two plots bearing Nos.248 and 250 situated at 21st Street, Phase VIII, DHA, Karachi each measuring 1000 sq. Yards. This transaction did earn reasonable saving to the plaintiffs and in this manner defendant No.1 succeeded in getting absolute confidence of the plaintiffs. Sometime later the defendant persuaded the plaintiffs to sell the abovesaid two plots and purchase four plots each measuring 500 sq. Yards out of the sale proceeds of the said two plots. The plaintiffs having full confidence in defendant No.1, accepted the proposal and accordingly defendant No.1 after selling the said two plots, allegedly purchased four plots in the beginning of 1997. He told the plaintiffs that Transfer Orders would be received by them through post in due course. Defendant No.1 told the plaintiffs that four plots were purchased for Rs.5.00 million and after deduction of miscellaneous expenditures towards purchase of the four plots and sale of two plots each admeasuring 1000 sq. Yards, a net amount of Rs.1.600 million was saved which was paid by him to the plaintiffs. In May, 1997 by the plaintiffs received three transfer order through post confirming transfer of Plot Nos.408/1, 402/1 and 407/2 situated in 32nd Street, Phase VIII, DHA, Karachi in favour of plaintiff No.l. In September, 1997 the plaintiffs received fourth transfer order in respect of Plot No. 397/2, 33rd Street, Phase VIII, DHA Karachi in favour of plaintiff No.4. The plaintiffs' thereafter asked defendant No.1 to hand over the files/copies of relevant documents including the receipts of payment and defendant No.1 promised to procure the same from the parties through whom the deals were entered by him.
3. After a couple of months, plaintiff No.3 alongwith plaintiff No.1 went to the office of DHA with Original Transfer Order of Plot No.409/1 to find out the exact location of the plot etc. And they were shocked to learn that the transfer order was bogus. Upon further enquiry, the Plaintiffs were informed that no transfer orders were issued in favour of the plaintiffs in respect of any of the plots. Upon this, the plaintiffs immediately contacted defendant No.1 who explained that he too had been cheated by some other party through whom the transactions had been materialized. He, however, assured the plaintiffs that he will settle the matter very soon. In February, 1998 the plaintiffs disclosed their suspicion against defendant No.1 in clear words and told him that unless some positive assurance was given, they proposed to initiate criminal action against him. In turn defendant No.1 executed a Promissory Note thereby undertaking to pay to the Plaintiffs a sum of Rs.5.00 million being the price of four plots. He further executed an irrevocable power of attorney in respect of a plot of land measuring six acres in Eastern Industrial Zone of Port Qasim Authority which was allotted to him in July, 1997 as collateral security for payment of sum of Rs.
4. 5.00 million.
5. Thereafter the plaintiffs waited for about two years with the hope that defendant No.1 would fulfil his promise. In the beginning of 2000 the plaintiff made enquiries about the plot offered by defendant No.1 as collateral security and they were once against astonished to find that it was useless piece of land worth of few thousands of rupees.
6. Ultimately the plaintiffs addressed a complaint on 30-3-2000 to the concerned Superintendent of Police and after investigation F.I.R. No.71 of 2000 was registered at Defence Police Station against defendant No.I under sections 420, 468, 471 and 506-B, P.P.C. And he was arrested. Thereafter the plaintiffs filed the present suit on 17-1-2001.
3. Suit No.1182 of 2000 has been filed by Salim Akhtar Khan viz. Defendant No.1 in Suit No. 68 of 2001.
7. The facts stated in the plaint of this suit are almost similar with the exception that as regards the transaction in respect of the four plots in question, the plaintiff in this suit has stated that such transaction was between the defendant viz. The plaintiffs in Suit No.68 of 2001 and another Estate Agency namely Messrs Y.R. Corporation and that he had only introduced the defendants to the said Estate Agency. According to him, after direct link between Messrs Y.R. Corporation and the defendants, he was no more required on the scene and that he is not aware as to what payment were made by whom in respect of which plot.
8. It is further averred that it was shocking and surprising for all the Estate Professionals that Y . R.
9. Corporation disappeared from the scene with millions of rupees of the people and some aggrieved parties have filed suits against them, two of them being Suits Nos.609 of 1998 and 1178 of 1998.
10. According to him it was in the end of 1997 when the defendants came to him and showed their apprehension about genuineness of the documents of their four plots which they had purchased from Y.R. Corporation, as such he took them to the D.H.A. Office where it was confirmed that all the documents in respect of the four plots were forged and false and they did not exist on the record of D.H.A.
11. Thereafter the defendants started teasing the plaintiff and holding him responsible for the money they lost on the pretext that it was he who referred the defendants to Messrs Y.R. Corporation and demanded the plaintiff to reimburse the loss suffered by them. They started moving false applications to higher authorities and using influential persons to pressurize the plaintiff, resultantly the plaintiff had to face several inquiries and he was put in illegal confinements. However, on approaching the higher authorities including Chief Justice, Sindh High Court, Governor Sindh and Inspector-General of Police, he was released. However, when lastly he was illegally confined on 1-4- 2000 and his father complained to the Chief Justice Sindh High Court, the police to safeguard themselves and to legalize the arrest lodged F.I.R. No. 71 of 2000 at P.S. Defence against the plaintiff.
12. According to the plaintiff, the said F.I.R. Was initially registered for offences under section 420/468/471, P.P.C., however, by using their connections with the high-ups subsequently section 506(b), P.P.C. Was also inserted in the F.I,R. In order to make the case more severe. Even after lodging of the abovesaid F.I.R. The Defendants were not satisfied and they were calling, him at different places and sending some unknown notorious elements to pressurize him.
13. It was averred that during the illegal confinement of the plaintiff, the defendants got signed some blank papers including stamp papers by the plaintiff forcibly under duress and compulsion and using police pressure and one of such papers has been used as Promissory Note. The plaintiff, therefore, filed this suit with the prayer that he ha's no privity of contract with the Defendants in respect of the abovesaid four plots, for restraining the defendants from pressurizing the plaintiff an for directing the defendants to submit all the blank/used documents in original including the alleged promissory note which they got signed from the plaintiff forcibly.
4. In both the suits written statements have been filed and the stand taken therein by the adversaries is the same as mentioned in their respective plaint, as stated above. With regaid to the plot of Port Qasim in respect whereof allegedly the defendant in Suit No.68 of 2001 namely Salim Akhar Khan has given power of attorney in favour of the plaintiffs, defendant No.1 stated in his written statement that no power of attorney was given by him in favour of the plaintiffs and that the said plot was not offered by him as collateral security.
5. Vide order, dated 4-3-2003 passed in Suit No. 68 of 2001 proposed Issues Nos. 1, 2 and 3 of the plaintiff and proposed Issue No.3 of defendant No.1 alongwith the issue of relief were adopted.
14. Consequently the following issues were framed:
(1) Whether the documents signed by defendant No.1 were blank and without consideration?
(2) Whether the plaintiffs are entitled to recovery of Rs.5.00 million with mark-up thereon or any other amount from the defendant No.1?
(3) What was the consideration for execution of Power of Attorney, dated 23-9-1998?
(4) Whether the plaintiffs have entered into deals of four plots measuring 500 square yards each in Defence Housing Authority with Messrs Y.R. Corporation through the defendant No.!?
(5) Relief?
15. In Suit No.1182 of 2000 following issues were framed on 14-5-2001:--
(1) Whether the defendants have entered into deals of four plots measuring 500 square yards each in Defence Housing Authority with Messrs Y.R. Corporation through the Plaintiff?
(2) Whether the defendants paid any amount through the Plaintiff to Messrs Y.R. Corporation or made him a witness in any document or transacted any deal or part of it through plaintiff?
(3) Whether the promissory note, dated 23-2-1998 was signed under duress and without consideration?
(4) To what relief the plaintiff is entitled?
6. The plaintiffs in Suit No.68 of 2001 examined plaintiff No.3, Adil Azhar as Exh.2 who produced various documents Exh.3 to Exh.51, defendant No.1, Salim Akhtar Khan examined himself as Exh.52.
16. He produced the documents Exh.53 to Exh.56. Pro forma defendant No.2 also examined herself as Exh.59 and produced documents Exhs.57 and 58.
7. I have heard Mr. Mushtaq A. Memon, Advocate appearing for the Plaintiffs in Suit No.68 of 2001 and for Defendants in Suit No.1182 of 2000, Mr. Muneeb Ahmed, Advocate for defendant No.1 in Suit No.68 of 2001 and the Plaintiff in Suit No.1182 of 2000 and Mr. Muhammad Ismail Memon, Advocate for Defendant No.2 in Suit No.68 of 2001. Before starting the arguments, it was prayed by Mr. Muneeb Ahmed Khan Advocate that the evidence recorded in Suit No.68 of 2001 may be treated as the evidence recorded in Suit No. 1182 of 2000 and both the suits may be disposed of on the basis of same evidence. Mr. Mushtaq. A. Memon Advocate for the other side expressly stated that he does not oppose such payer. Accordingly it was allowed. Consequently both the suits are being decided on the basis of the evidence recorded in Suit No.68 of 2001.
17. 8.Issuewise findings are as under:-- Issues No.1 of Suit No.68 of 2001 and Issue No.3 of Suit No.1182 of 2000:- As the aforesaid two issues are inter-linked, they are being dealt with jointly.
18. In fact these are the main issues for resolving the entire controversy between the parties. Plaintiff No.3, Adil Azhar, in his evidence deposed that in the afternoon of 23rd February, 1998 Defendant No.1 came at a shop near the Defence Housing Authority Office. The plaintiff party also reached at the appointed placed where a promissory note for Rs.5 Million was prepared on stamp paper. It was signed and attested in presence of Plaintiff No.3 and his elder brother. - Defendant, Salim Akhtar, in his evidence stated that in the evening of 20th February, 1998 he received a telephone call from the Defence Police Station to come at the police station. When he reached the police station, except Plaintiff No.1, Arjumand Azhar, other Plaintiffs were present there alongwith their brother-in-law. The S.H.O. Threatened the Defendant to immediately settle the dispute with the Plaintiffs and detained him in the police station for. About three days. According to him, when he put his signatures on some blank stamp papers, be was allowed to leave the police station. He was told that the stamp papers would be kept as surety till such time the money is received from Y.R. Corporation. He further deposed that during the said period his father moved applications/complaints to the Chief Justice of this Court as well as to the 1.-G. Police Sindh. He also produced copies of the complaints as Exhs.53, 54,
55. He further stated that subsequently also he continued to be harassed, pressurized and detained. Ultimately when his office was raided by the police on 1-4-2000 (the date on which F.I.R. Exh.58 was lodged against defendant Salim Akhtar by mother of the plaintiffs), his father again submitted a complaint to the Chief Justice of this Court copy whereof has been produced by him as Exh.56. He further stated that before the registration of F.I.R. The police confronted him with a promissory note asking him about execution of the same.
19. According to him, it was the first occasion that he had come across the said promissory note. He denied the execution of the promissory note. He stated that he was not liable to pay any amount to the plaintiffs on account of any act on his part.
20. In his cross-examination, Plaintiff No.3, Adil Azhar, denied the suggestion that the stamp paper on which the promissory note was prepared was blank when it was signed by defendant No.1, however he showed his ignorance about the pasting of the Revenue stamps on the back of the stamp paper although he admitted that at the time of execution of the promissory note he was present alongwith his elder brother.
21. Defendant No.1 in his cross-examination denied the suggestion that he had signed the promissory note in presence of Notary Public. He also denied the suggestion that he voluntarily signed Exh.40, the promissory note, to meet his obligation. He said that he had no obligations.
22. The learned counsel for defendant No.1 contended that neither consideration was passed nor is shown in the promissory note for its issuance, as such, it is not valid in law. He relied upon the case of Nasir Ahmed v. Pakland Cement Ltd. Reported in 2001 CLC 1156. In the cited decision, it was observed that it is an accepted proposition of law that, where a Negotiable Instrument has been issued and is without consideration such Negotiable Instrument cannot be acted upon. In the said case reference was also made to earlier decisions reported in 1998 CLC 816 and PLD 1995 Lahore 395.
23. According to the plaintiffs, in the afternoon of 23rd February, 1998 defendant No.1 came at a shop near the Defence Housing Authority Office and the Plaintiffs party also reached at the appointed place where the said promissory note was prepared on stamp paper which was signed by defendant No.1 and attested by the Notary Public. From such statement, an attempt seems to have been made to show that the execution of the promissory note is voluntary and that defendant himself had appeared and agreed to execute the said promissory note. On the other hand the case of the defendant is that during the crucial dates mentioned on the promissory note i.e. 21-2- 1998 and 23-2-1998 he was in custody of police where he was forced to sign blank stamp papers.
24. To support such plea he has produced copies of the complaints moved by his father to the higher authorities including the Chief Justice of this Court. Above assertion of defendant No.1 could not be successfully shaken in the cross-examination. Nothing was brought on record in rebuttal except a suggestion in cross-examination that such applications/complainants were not moved, which was denied by the defendant No. 1.
25. It is also worth-mentioning that plaintiff No.3 during his cross-examination showed his ignorance about the affixation of adhesive Revenue stamps on the back of the promissory note although he claimed to be present at the time of execution of the same. The Revenue stamps pasted on the back and enclosures of the Promissory Note have not been cancelled.
26. The examination of the promissory note makes it evidently clear that the stamp paper on which it was typed was neither purchased by the executant, nor was it purchased by either of the Plaintiffs.
27. But it was issued in the name of Azizuddin Qureshi Advocate, who has obviously no concern with the transaction. The stamp paper was issued on 21-2-1998 and the same was attested by Notary Public on 23-2-1998, but strangely enough the document does not contain the date of it's execution. Plaintiffs' witness has deposed about his presence and that of co-plaintiff and Defendant No.1 at the time of execution of pronote but evidence with regard to the presence of Notary Public on that occasion is badly lacking to complete the chain of events. Notary Public was not produced in evidence to prove as to when and where it was executed and, if any, what was the consideration for executing the same. The stamp paper purporting to be the pronote was typed, but certain relevant columns including the amount were left blank and were filled in with hand writing presumably at a later stage. Purpose to the prosecution. Moreover bail cannot be withheld as a punishment.
28. There is absolutely no evidence to prove who actually filled in the blanks. Defendant No.1 has categorically denied any obligation and declined to have executed the Promissory Note against consideration. Even it is not the case of the Plaintiffs that the pronote was for consideration, actually paid to defendant No.1 at the time of it's execution. The facts and circumstances are adequate enough to speak that that document in question was dubious rather spurious, signatures of defendant No.1 whereupon were procured by the plaintiffs under duress by exerting pressure upon him by way of using their influence on police, the most powerful and extremely infested and highly polluted limb of State machinery.
29. Besides, there is another legal aspect to render the promissory note inadmissible in evidence. It seems to be the settled proposition that if the stamps affixed on an Instrument have not been cancelled, such instrument is not admissible in evidence and decree cannot be passed on the basis of that instrument. Purpose to the prosecution. Moreover bail cannot be withheld as a punishment.
30. In the case reported as Sohan Lal Nihal Chand v. Raghu Nath Singh and others (AIR 1934 Lahore 606) it was held: "So far as an uncancelled stamp is concerned the instrument to which it is affixed shall be deemed to be unstamped.....So where a pronote requiring four annas stamp bears only three cancelled one anna stamps and one uncancelled one anna stamp it should be considered as insufficiently stamped."
31. In the case reported as K.M. Muneer v. Mirza Rashid Ahmed (PLD 1963 (W.P.) Karachi 905 while referring the case of Sohan Lal (supra), it was observed as under:-- "The principles enunciated in this decision have not been challenged by the leaned counsel for the plaintiff. It is, therefore, quite obvious that the pronotes in the. Two suits in question are insufficiently stamped and inadmissible in evidence under section 35 of the Stamp Act.
32. Consequently no decree can be passed on the basis of the pronotes which are inadmissible in evidence."
33. After surveying the relevant case law on the subject, a learned Single Judge of Lahore High Court in Malik Muhammad Akram v. Khuda Bakhsh (200 CLC 759) concluded as follows:-- "In view of the above discussion and the principles laid down in the cases, referred to above, I am in agreement with the dictums laid down in cases (supra) by holding that promissory note in question was insufficiently stamped and out of 20 stamps, four (4) denomination of 40 paisas each had not been cancelled at the time of execution of pronote, thus, the pronote being invalid documents, no decree could be passed in favour of the Respondent against the Appellant.
34. In the case in hand 800 adhesive stamps of the denomination Rs.2 each are shown to have been affixed on the promissory note but, none of the said stamps has been cancelled which render the promissory note inadmissible in evidence. It appears that the said stamps were affixed subsequently which fact gets support from the admission of plaintiff No.3 in his cross-examination that he was not aware about the pasting of the Revenue stamps on the back of the promissory note although, according to his own assertion, he was present at the time of alleged execution of the promissory note purpose to the prosecution. Moreover bail cannot be withheld as a punishment.
35. It is thus crystal clear that the instrument was not voluntarily executed by defendant No.1 and that the amount therein was filled in subsequently after the blank stamp paper was got signed by him under duress. Eventually the adhesive Revenue stamps were affixed thereon, in order to lend it genuineness, but to their hard luck, the plaintiffs failed to cancel those Revenue stamps.
36. Resultantly, the said promissory note was rendered inadmissible in evidence. Additionally it reflects the conduct of the plaintiffs.
37. The cumulative effect of the above discussion leads to the conclusion that the promissory note was not valid, it was got executed under duress and coercion, the same was without consideration beside being inadmissible in evidence. Purpose to the prosecution. Moreover bail cannot be withheld as a punishment.
9. After having arrived at the conclusion that the promissory note was invalid, the point to be determined would be whether the plaintiffs were liable to be non-suited, or other independent evidence, if available on record, would be considered for adjudication of their claim.
38. In the case of K.M. Muneer v. Mirza Rashid Ahmad (supra) this proposition also came to be discussed. Reference was made to various decisions one of those being the case of Ram Nath v.
39. Bhagwati Prasad and another (AIR 1946 All. 15). In the said case it was observed as under:-- "Where, as in the suit in appeal and as usually, all the substantial terms of the contract have not been embodied in the promissory note and where, as in the suit in appeal, the promissory note is inadmissible in evidence by reason of section 35, Stamp Act, it is open to the plaintiff to prove the terms of the contract. Under such circumstances the bar of section 91, Evidence Act, does not apply."
40. In the case of K.M. Muneer v. Mirza Rasheed Ahmed (PLD 1963 (W.P.) Kar. 905) it was further held:-- "in the Patna, Oudh and Nagpur Courts the view is that where money is advanced under a promissory note which is not sufficiently stamped, the lender is entitled to maintain a suit for the recovery of the money lent and to adduce evidence other than the instrument itself."
41. In nutshell it may be observed that if the claim of the plaintiff wholly depends upon the Promissory Note and if the said instrument is found to be inadmissible in evidence, the suit can be dismissed on this sole ground, however, if in case besides the promissory note the plaintiff also relies C upon other evidence, then the promissory note would be excluded from consideration being inadmissible in evidence, yet the suit could be decided on the basis of other evidence and in that case the bar contained in Article 102 of the Qanun-e-Shandat Order will not come in the way of the plaintiff.
42. Having arrived at the above proposition of law which is based on sound logical dictates, I have followed the same and have sifted the other evidence led by the plaintiff.
43. In para. 5 of the plaint it is pleaded by the plaintiffs that they were made to understand by the defendant that four plots were purchased for Rs.5 million and a net amount of Rs.1.6 Million was saved from the sale price of 1000 sq. Yards plots.
44. Accordingly defendant paid the said sum of Rs.1.6 Million to the plaintiffs.
45. The defendant in the written statement has denied the above assertion stating that the defendant was not the custodian of any amount, nor he could be, as the purchaser of 1000 sq. Yards plot paid money directly to the plaintiffs as per practice and to his satisfaction as well for the tax purposes.
46. However, in his examination in chief plaintiff No.3 did not depose on oath about the retention of the sale proceeds of 1000 sq. Yards plots by the defendant. The only fact which was deposed by the plaintiff in his examination in chief is that the promissory note of Rs.5 Million was prepared on stamp paper. In the cross- examination the plaintiff, according to him, could not recall as to whether the amount of Rs.16 Lacs was received in cash or through bank. Even he did not reply that what was the exact sale price of the two plots as, according to him, he did not remember such fact.
47. According to the plaintiff, he was not aware whether the plots were purchased at one and the same time or one after the other. Neither he was aware of the exact sale price of the plots nor the year in which the same were purchased.
48. As abundantly obvious, the evidence led by the plaintiffs was absolutely insufficient, besides being glaringly inconsistent, thus could not be trusted with truth. On the basis of such inadequate and incredible evidence, it could hardly be concluded that defendant No.1 owned a sum of Rs.5 Million, or for that matter any sum of money to the plaintiffs, as claimed.
49. In view of above, Issue No.1 of Suit No.68 of 2001 and Issue No.3 of Suit No.1182 of 2000 are answered in favour of Salim Akhtar Khan, defendant No.1 in Suit No.68 of 2001 and plaintiff in Suit No.1182 of 2000.
50. Issue No.4 of Suit No.68 of 2001 and Issues Nos.1 and 2 of Suit No.1182 of 2000: The defendant Salim Akhtar in his evidence has categorically denied that the plaintiffs entered into any sale transaction of the plots with Messrs Y.R. Corporation through him. According to him he only introduced the plaintiffs to Messrs Y.R. Corporation and thereafter he had no concern with the dealing between the plaintiffs and Messrs Y.R. Corporation. In his cross-examination he had categorically denied the suggestion that the plots in question were purchased through him.
51. Although the plaintiffs claim that the plots in question were purchased through defendant No.1 from the sale proceeds of the earlier plots of the plaintiffs which was kept by defendant No.1 with him, but the plaintiffs have not produced any material worthy of reliance to prove that the said sale transaction was carried out through defendant No.1 or that any amount of the plaintiffs was paid to or was lying with him. In the absence of any such material, the version of the plaintiffs cannot be believed.
52. These issues, too, are answered in favour of defendant. No. 1 in Suit No. 68 of 2001.
53. Issue No.2 of Suit No.68 of 2001: In view of the findings recorded on the above-discussed issues, this issue is answered in negative.
54. Consequently it is held that the plaintiffs are not entitled to recover amount of Rs.5 million from defendant No.1, Salim Akhtar.
55. Issue No. 3 of Suit No. 68 of 2001: In view of the findings arrived on the above-discussed issues, this issue has been rendered inconsequential. Even otherwise it was hardly material for the purpose of adjudication of the controversy.
56. Issue No.5 of Suit No.68 of 2001 and Issue No.4 of Suit No.1182 of 2000: In view of above discussions, it is held that the plaintiffs in Suit No. 68 of 2001 are not entitled to the reliefs sought in the suit and the suit is accordingly dismissed whereas Suit No.1182 of 2000 is decreed as prayed.
57. However, in view of the peculiar circumstances, there will be no order as to costs.
58. Before parting, it seems necessary to state that some cases which were cited by learned counsel for the parties were fully considered. While the legal propositions decided therein were inescapable yet those were found to be distinguishable on facts, hence reference thereof was not deemed necessary.