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Petitioner: NADIR ALI and another VS Respondent: MUHAMMAD ADAM KHAN
Court Name: Sindh High Court Judge(s): k.A Ghani Title: NADIR ALI and another vs MUHAMMAD ADAM KHAN Case No.: Revision Application No.153 of 1982 Date of Judgment:1984-03-28 Reported As: 1985 CLC 373 Result: Petition accepted
JUDGMENT
JUDGMENT ' This Revision Application has been filed against the judgment and decree passed on 18th April, 1982 by the learned VIIIth Additional District Judge,Karachi in Civil Appeal No.531/1980 whereby the said appeal was dismissed and the judgment and decree, passed in Civil Suit No.1104/1979 decreeing the suit of the respondent/plaintiff for Rs.7,000., was confirmed. 2. The respondent (hereinafter referred to as the plaintiff) brought the above-mentioned suit against the appellants (hereinafter referred to as the defendants) on the pleas raised by him in the plaint that in September/October, 1978, the defendant No.1/applicant No.1 had taken a friendly loan of Rs.7,000 in cash and promised to return the same as early as possible but as the same was not paid as promised, on 4th January, 1979 he went to his quarter (J/60, Naval Colony, Karachi) with his friend when the defendant No.1 requested for more time but as the plaintiff insisted for payment the defendant No.2/the applicant No.2 (the daughter of defendant No.1) gave bearer Cheque No.SRSF 074565, dated 4th January, 1969 drawn on Messrs Habib Bank Ltd., Gambat Branch, District Khairpur in the sum of Rs.7,000 to the plaintiff and both of them assured the plaintiff that the said cheque would be honoured and that both of them were jointly and severally responsible for the encashment and payment of the said cheque. It was further pleaded that the plaintiff deposited the said cheque in his account at Karachi. The cheque was dishonoured and returned by the bank with the remark "payment stopped by the drawer". According to the plaintiff's case in the plaint after the dishonour of the cheque, he personally approached the defendants and requested for payment of the said amount in cash but they avoided to do so on one pretext or the other and thus compelled under the circumstances he on or about 28th February, 1979 addressed a legal notice demanding the said amount which was delivered but neither the amount was paid nor any reply
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was received. According to the plaintiff, he in order to avoid litigation again approached the defendant No.1 and demanded the payment but it was flatly refused. Further, pleading that the action of the defendants not only lowered the plaintiff's position in the eyes of the persons around him but the plaintiff could not meet his ,commitments resulting in physical, mental and monetary losses for which it was stated that he reserved his right to make claim against them. ' It was also pleaded that the cause of action arose on or about September/October, 1978 when the said amount was given to the defendant No.1 as a friendly loan, on or about 4th January, 1979 when the defendants gave the cheque in question and on 6th January, 1979 when the defendant No.1 stopped the payment of the said cheque which was returned dishonoured and thereafter on'28th February, 1979 when the demand was made through a legal notice. ' The defendants filed their separate written statements taking the same pleas in defence. It was denied by both of them that any loan was taken by the defendant No.1 from the plaintiff. It was further pleaded that they have no concern with the Quarter No.J/60, Naval Colony, Mauripur, Karachi and that the defendant No.2 did not issue any cheque bearer or otherwise in favour for the plaintiff. It was stated that the cheque book of the defendant No.1 was lost, it contained the cheque alleged to have been given to the plaintiff which cheque was a forged document, neither in the handwriting of the defendant No.2 nor signed by her. The defendant No.2 had reported to the bank about the loss of the cheque book and requested for stoppage of payment against any cheque from the said cheque book for which reason the forged cheque was dishonoured. It was also pleaded that th,e defendant No,1 in his professional capacity as an advocate had been conducting cases against the plaintiff and that the plaintiff had filed the suit in order to harass the defendants. 2. On the pleadings of the parties the following issues were framed yy the learned trial Court:- "(1) Whether the defendant No.1 had taken a sum of Rs.7,000 in cash as friendly loan from the plaintiff? (2) Whether defendant No.2 gave a bearer Cheque No.SRSF074565, dated 4-1-1979 of the sum of the Rs.7,000 drawn on 61/s. Habib Bank Ltd. Gambat Branch, District Khairpur to the plaintiff against the said loan on behalf of the defendant No.1? (3) Whether the said cheque was dishonoured by the Bank? (4) Whether the plaintiff demanded the said amount from the defendant? (5) Whether the defendants are jointly and severally liable to pay the suit amount to the plaintiff? (6) What relief if any plaintiff is entitled? 3. At the trial, the plaintiff examined Mr.Saeed-ul-Hassan, Manager, Habib Bank Limited (P.W.1), who produced the dishonoured cheque as Exh.P/3, pay-in-slip as Exh.P/4 and the memo. returning the cheque with the objection 'payment stopped by the drawer' as Exh.P/5.The other witness Syed Munawar All (P.W.2), the Clerk from the Karachi Bar Association, produced the registration form of defendant No.1 as Exh.P/1. The photostat copy of the register, in which the name of the defendant No.1, was produced as Exh.P/2. The plaintiff examined himself as P.W.3 and also produced Sattar Hussain, a businessm an (P.W.4) and Mohammad Nabil (P.W.5), a taxi driver. The defendants Nos.1 and 2, examined themselves as D.Ws Nos. 1 and 2 respectively. They also examined Mohammad Shafi, a tenant of the plaintiff Mr.Altaf Hussain Kazmi, Manager, Habib Bank Limited, Gambat Branch, District Khairpur who examined as D.W.4, produced specimen signature card as Exh.D/1 and the letter, dated 6th January, 1979 (Exh,D/2) issued by the defendant No.2 asking the said bank to stop payment of any cheque issued from her cheque book which had been lost. The said witness also deposed that signature on Exh.D/1 (the specimen signature card) is quite different from the signature on Exh.D/3 (the cheque in dispute). 4. The learned trial Court after recording evidence and hearing of the Advocate for the parties and comparison of the signatures of the applicant No.2/defendant No.2 on her Vakalatnama and
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written statement with the signature on the cheque Exh.P/3 formed the opinion that her signature on Exh .P/3 and the above-mentioned two documents are similar. ' The issues Nos.1 to 5 were thus answered in the affirmative and the suit against the defendants for Rs.7,000 was decreed by judgment passed on 30th October, 1980. 5. Appeal No.531/1980 preferred against the above judgment and decree passed by the trial Court, was heard by the learned VIIth Additional District Judge, Karachi who dismissed the same by his judgment, passed on 18th April, 1982. 6. The applicants have now come to this Court against the above-mentioned judgments and decrees by invoking the revisional jurisdiction of this Court under section 115, C.P.C. 7. The applicant No.1 at the time of hearing of the appeal raised amongst others the following main grounds in support of this petition: "(1) that the story of the granting of loan set up by the plaintiff was different from that pleaded in the plaint. It was accordingly contended that there was misreading of evidence and that the judgments of the two Courts are based upon evidence which should not have been looked into. (ii) that the findings given by the two Courts that the cheque Exh.P/3 bears the signature of the defendant No.2/applicant No.2 is based upon no legal evidence. ' It was contended that even the alleged comparison made by the two Courts below was not only unjustified but also not sufficient to come to the conclusion that the said cheque was signed by the defendant No.2 8. As regards the submissions. made under ground No.1: which formed the subject of Issue No.1, I would like first to refer to the case which was pleaded by the plaintiff in the plaint which is required amongst others to contain the facts constituting the cause of action and when it arose. (i) In para. 1 of the plaint it was pleaded:- "that at Karachi the defendant No.1 had taken a total sum of Rs.7,000 in cash friendly loan from the plaintiff and had promised to return the same as early as possible." (ii) Reference may now be made to para. 7 of the plaint. The relevant plea raised therein for decision of this case is reproduced below:- "That the cause of action arose to the plaintiff against the defendant on or about September/October, 1978 when the said amount was given to the defendant No.1 as a friendly loan by the plaintiff (iii) In para. 2 of the plaint, it was inter alia stated:- "That the plaintiff after waiting for about 2 months was compelled to demand the said amount on 4th January, 1979, when he had gone to his Quarter No.J/60, Naval Colony, Karachi alongwith his friend. The defendant No.1 requested for some more time but on the insistence of the plaintiff, the defendant No.2 who is the daughter of defendant No.1, gave the bearer Cheque No.SRSF074565, dated 4-1-1979 of M/s. Habib Bank Ltd., Gambat Branch, District Khairpur of a sum of Rs.7,000 and both assured the plaintiff that the said cheque will be honoured and that both were jointly and severally responsible for the encashment payment of the said cheque amount." (iv) The plaintiff then pleaded:- "That the plaintiff deposited the said cheque in his account at Karachi, but the said cheque was dishonoured and returned by the Bankers of the defendant No.2 with the remarks 'payment stopped by the drawer'. ' That after the dishonour of the cheque in question the plaintiff personally approached the defendants and requested to pay the said amount in cash but the defendant avoided the payment on one pretext or the other and compelled under the circumstances the plaintiff on or after 28-2-1979 addressed a legal notice, demanding the said amount which was duly received but neither the amount has been paid so far nor the defendant has bothered even to reply the said notice (photo copy of the notice attached.)."
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(v) It was also stated in the plaint:- "That this action of the defendant has not only lowered the plaintiff's position in the eyes of the persons around him but the plaintiff could not meet his commitments resulting in physical, mental and monetary losses for which claim he reserves his rights." 9. In the light of the facts pleaded on which the cause of action is based, I would now consider the findings given by the two Courts below to see if the same are in accordance with the law. 10. The first question which rises is as to the plea raised in para. 1 of the plaint that the plaintiff had advanced a friendly loan of Rs.7,000 to the defendant No.1. ' The perusal of the record, however, shows that this assertion of the plaintiff was denied by both the defendans. The plaintiff in his examination-in-chief did not claim that he had any friendly relationship with the defendant No.1. His statement was to the effect that about 6 or 7 months prior to the date on which the loan was advanced he came to know the defendant No.1 was living in the Naval Quarter, through Muhammad Shafi who was plaintiff's tenant and who was on visiting terms with the defendant No.1. Thus according to the statement of the plaintiff except for the mere acquaintance, the plaintiff had no other terms muchless any friendly terms with the defendant No.l. Moreover, the plaintiff, did not examine Muhammad Shafi, his tenant in support of his statement that defendant No.1 was introduced to him by the said Muhammad Shafi/the tenant. The statement in the cross-examination made by the plaintiff, on the contrary shows that Muhammad Shafi and the plaintiff in 1978 were at daggers drawn and that serious litigation had already started between these two persons. The plaintiff admitted that he had filed ejectment case against Muhammad Shafi in 1978 and that in the same year Muhammad Shafi had filed an Application No.5332/78 in the Court of Rent Controller against the plaintiff for permission to deposit rent, and rent was deposited by the said tenant in Court in September, 1978 obviously for the reason that the plaintiff was not accepting rent and there were disputes between him and Muhammad Shafi. Plaintiff also admitted that the defendant No.1 was the Advocate for Muhammad Shafi who had filed a case under section 307, P.P.C. against the plaintiff. Thus, there is every reason to believe that Muhammad Shafi who was involved in serious litigation with the plaintiff in September, 1978 could not have introduced his own Advocate, who had filed a case under section 307, P.P.C. against the plaintiff for the purposes of obtaining a friendly loan of Rs.7,000 from the plaintiff. ' Muhammad Shafi, however, was examined by the defendant No.1 (D.W.3). This witness in his deposition stated that the defendant No.1 was his Advocate in 3 cases out of them one was under section 307, P.P.C. and the other cases were between him and the plaintiff as tenant and landlord. He denied the knowledge of any loan transaction between the plaintiff and the defendant No.1 and also denied that he ever introduced the defendant No.1 to the plaintiff. In the cross-examination to a question put by the plaintiff's counsel, the said witness Muhammad Shafi, expressly stated that it was incorrect that plaintiff Adam Khan gave loan to Nadir Ali Baig (the defendant No.1) in his presence. He further stated that the defendant No.1 was his Advocate in rent cases and in the case which the plaintiff's son had filed against him and also in the case under section 307, P.P.C. ' The above evidence completely negatives the story set up in para. 1 of the plaint that any friendly relationship existed between the plaintiff and defendant No.1 in September/October, 1978 which could induce the plaintiff to advance a friendly loan of Rs.7,000 to the defendant No.1, Advocate for Muhammad Shafi who was involved in serious and bitter litigation with the plaintiff. The observation made by the learned appellate Court that when the loan was advanced Muhammad Shafi was on good terms with plaintiff is against the evidence on the record. The trial Court has not referred to alleged friendly relationship between the said witness (Muhammad Shafi) and the plaintiff. 11. Another aspect of the case which also negatives the case of the plaintiff may be taken note of. The plaintiff in para. 1 of the plaint (reproduced above) stated that he had advanced Rs.7,000 as
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friendly loan to the defendant No.1 who had promised to return the same as early as possible, and according to him (para. 7 of the plaint) this transaction took place "on or about September/October, 1978 when the said amount was given to the defendant No.1 as a friendly loan". ' At the trial however the plaintiff gave a gobye to the above case pleaded in the plaint and came out with a new story and stated in his examination-in-chief:- "The defendant had taken from me the said amount in the month of December, 1978 but the defendant did not return the said amount according to his promise." ' The above statement of the plaintiff in the evidence being contrary to what he had pleaded in the plaint, was liable to be rejected in view A of the settled law that a fact which has not been pleaded in the plaint no amount of evidence in support of the same can be looked into. 12. There is yet another reason for disbelieving the case of the plaintiff. In the plaint he had pleaded that the friendly loan of Rs.7,000 was advanced by the plaintiff to the defendant No.1 on the promise that it would be returned as soon as possible and that after "waiting for two months he was compelled to demand the said amount on 4-1-1979 when he had gone to his (defendant's) Quarter No.J/60, Naval Colony, Karachi alongwith his friend" (para. 2 of the plaint). The plaintiff in his evidence however set up a new case by stating:- "Defendant had taken Rs.7,000 from me as loan for only two days. The defendant had taken from me said amount in the end -of December of 1978 but defendant did not return the said amount according to his promise. I went to defendant's house on 1-1-1979 but he did not pay me said amount and took time for two days thereafter he did not pay the said amount, therefore, I went to his house on 4-1-1979 alongwith Shahji Satter Shahji in Taxi and demanded the said amount from him but he avoided to pay the same when I insisted him and say that I cannot come daily. ' Here again the plaintiff has set up a different case in the evidence than what has pleaded in the plaint. 13. (i) I may now refer to the demand made for return of the amount advanced as loan and issuance of the disputed cheque by the defendant No.2. The story as per statement of the plaintiff in para. '2 is as follows: - "That the plaintiff after waiting for about 2 months was compelled to demand the said amount on 4-1-1979 when he had gone to his quarter at J/60, Naval Colony, Karachi alongwith his friend. The defendant No.1 requested for some more time but on the insistence of the plaintiff the defendant No.2 who is the daughter of defendant No.1 gave a bearer Cheque No.SRSF 074565, dated 4-1-1979 of M/s. Habib Bank Ltd., Gambat Branch, District Khairpur of a sum of Rs.7,000 and both assured the plaintiff that the said cheque will be honoured and that both were jointly and severally responsible for the encashment payment of the said cheque amount." (The underlines are by me). ' Thus, it would be noted that after waiting for about 2 months for repayment of the loan on 4-1- 1979 the plaintiff alongwith his friend visited the defendants' house, and that on that very first visit, the defendant No.2 gave the cheque in dispute to the plaintiff. The plaintiff however gave up his case as well, when in the evidence he deposed:- "Defendant had taken Rs.7,000 from me as loan for only two days. The defendant had taken from me said amount in the end month of December, 1978 but defendant did not return said amount according to his promise. I went to defendant's house on 1-1-1979 but he did not pay me said amount and took him for two days thereafter he did not pay the said amount, therefore, I went to his house on 4-1-1979 alongwith Shahji Sattar Shahji in Taxi and demanded the said amount to him but he avoided to pay the same when I insisted him and say that I cannot come daily, therefore, defendant No.1 called his daughter Nasreen who is defendant No.2 and said her to give her cheque but I refused to take cheque and demanded cash, both defendant No.1 and defendant No.2
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assured me that the cheque would be cashed. I see Exh.P.3 which was written before me at the time when Exh.P.3 was written defendant No.1, defendant No.2, Sattar Shahji and driver were present. The name of driver is Muhammad Nabi defendant No.2 signed on Exh.P.3 before me." (The underlines are by me.) (ii) In the evidence contrary to what was stated in the plaint relevant portion reproduced above, a new case was set up that the loan was advanced in December, 1978, that the loan was advanced for two days only and that on the first visit on 1-1-1979 the defendant did not pay the amount and took time for two more days and on the second visit on 4-1-1979 the alleged cheque was given to him by defendant No.2. ' The plaintiff in his evidence also introduced the presence of taxi driver when the cheque was allegedly given. In the ordinary circumstances the taxi driver was expected to remain in his taxi outside the house and not to accompany the passenger and enter the house of a stranger (the defendant No.1.). The story of presence of taxi driver as witness, is false and an afterthought which conclusion is fortified for the reason that in the plaint the plaintiff had pleaded that he had gone to the house of the defendant No.1 on 4th January, 1979 alongwith a friend but nothing was mentioned about the presence of the taxi driver when the alleged demand was made by him and the cheque was allegedly given by the defendant No.2. 14. As regards the notice sent by the plaintiff to the defendant on 28th February, 1979 it was stated in the plaint that the same was duly received but from the evidence of the plaintiff I find that the said notice was not received by the plaintiff No.1 but by one Imtiaz who was alleged to be a nephew of the defendant No.1. There is no evidence on record that the said notice, sent by the plaintiff through Advocate ever reached the defendants. 15. (i)As regards the cheque allegedly issued by the defendant No.2. The case of the plaintiff in the plaint was after he had not acceded to the request of the defendant No.1 for granting some more time to him for re-payment, on the insistence of the plaintiff the defendant No.2 (who is the daughter of the defendant No.1) gave "bearer Cheque No.SRSF 074565, dated 4-1-1979 of Messrs Habib Bank Ltd., Gambat Branch, District Khairpur of a sum of Rs.7,000". Both the defendants however expressly denied that the defendant No.2 issued any cheque bearer or otherwise in favour of the plaintiff. It was further pleaded that the cheque book of the defendant No.2 was lost and that the cheque in question is forged and that it was neither in the handwriting of the defendant No.2 nor signed by her. The defendant No.2 reported to the concerned bank about the loss of the cheque book and also requested it not to make payment if any cheque was presented for payment. According to the defendants in these circumstances forged cheque was not honoured. ' The plaintiff in his evidence deposed that the said cheque (Exh.P.3) was written before him and that at the time when the said cheque was written by the defendant No.2, Satter Shahji and taxi driver Muhammad Nabi were also present. The above statement of the plaintiff was challenged in the cross-examination. The plaintiff's witnesses Sattar Hussain (P.W.4) and Mohammad Nabi, the taxi driver (P.W.5) supported the plaintiff in respect of the allegation made that the defendant No.2 had signed the cheque and delivered it to the plaintiff. (ii) The defendant No.1, however in his evidence denied the statement of the plaintiff and stated that:- "My daughter did not give any cheque to the plaintiff. I see Exh.P.3 and say that it is neither in handwriting of my daughter nor she had signed it." ' The defendant No.2 in her written statement as well as in her evidence expressly stated that the said cheque (Exh.P/3) is a forged document that it is neither in her handwriting nor it has been signed by her (Written statement para. 2). She examined herself in the Court. She expressly deposed that she did not give any cheque to the plaintiff and that the cheque (Exh.P/3) was never issued by her nor it bears her signature. She explained that the said Cheque belongs to her cheque
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book which was lost in Karachi, where she had come in December, 1978 and had stayed with her father in 36-B, Landhi Colony, from where she went to Shershah, Mauripur and some other places in Karachi but could not say where the said cheque book was lost. She further deposed that she came to know for the first time on 3-1-1979 that her cheque book was lost, the next morning she left for Gambat where she reached on Thursday in the night. The next day was closed being Friday, she therefore, informed the bank about the loss of the cheque book on 6th January, 1979 and requested the bank to issue her a new cheque book. In the cross-examination she stated that she makes signature of only one kind. On being confronted with the Vakalatnama and the cheque, she admitted her signature on the Vakalatnama but categorically denied that the Cheque Exh.P.3 bore her signature. In reply to the suggestion made to her that the signature on Exh.P/3 (the cheque) and the signature on the Vakalatnama are similar she categorically stated that these are not similar. She also stated that at the time of the opening of the account in the bank her specimen signatures were obtained by the bank and admitted in cross-examination that her signature on the Vakalatnama and the specimen signatures obtained by the bank, are similar. Significant fact to be taken note here is that not a single question was put to this lady, the defendant No.2, who is an educated girl of 23 years by profession a teacher, that the cheque was written and signed by her in the presence of the plaintiff or anyone of the two alleged witnesses, namely, Satter Hussain, P.W.4 or Mohammad Naveed P.W.5 the taxi driver. In para. 2 of the plaint it was placed by the plaintiff that this lady as well as her father both assured the plaintiff that the cheque would be honoured and that "both were jointly and severally reponsible for the encashment payment of the said…
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