Law: Civil Procedure Code (V of 1908)

Section: O.VII,R.2&O.XXXIX,Rr.1&2

Law: Qanun-e-Shahadat (10 of 1984)

Section: 133

(a) Civil Procedure Code (V of 1908)--- ----O.VII, R.2 & O.XXXIX, Rr.1 & 2---Qanun-e-Shahadat (10 of 1984), Art.133---Suit for recovery of money and permanent injunction---Oral agreement, proof of---Absence of cross-examination of facts not controverted during cross examination---Presumption---Exception to presumption---Plaintiff filed suit for recovery claiming that she had loaned suit amount to defendant, her daughter-in-law, under oral agreement to help her get study visa, which defendant refused to return after she had been divorced (by her son)---Both trial court and appellate court decreed the suit---Validity---Defendant had admitted deposit of suit amount in her account by plaintiff---Defendant, in her written statement, had stated that suit amount had been transferred in her account as gift due to love and affection---Defendant witness also deposed that amount deposited in account of defendant was in nature of gift---Statements of defendant and her witnesses had not been controverted by plaintiff---Compromise deed between parties produced and relied upon by plaintiff could not be treated as acknowledgment of debt or admission---Where party had omitted or failed to cross examine a witness on particular question of fact stated in examination-in-chief, it would be presumed that such fact had been admitted---Said presumption was, however, neither absolute nor infallible, and was open to exceptions----Statement made during examination-in-chief, which was not controverted in cross examination, was to be construed in light of pleadings of parties and other evidence produced and placed on record---Said presumption could be displaced by reliable, cogent and clear evidence---When there was other evidence, question as to whether party upon whom burden of proof lay was able to discharge the burden, would be determined on basis of preponderance of evidence or balance of probability---Burden to prove issue regarding existence of oral agreement was on plaintiff, which she failed to discharge---Absence of cross examination or failure to controvert facts deposed by plaintiff in her examination-in-chief did not give rise to presumption of admission, as same was…

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