1988 PLP 1283 (MLD)

This first appeal under section 96 is filed by the plaintiff/applicant against the judgment and decree of the learned V11th Additional District Judge, Karachi. The relevant facts are as follows. The appellant instituted a summary suit for recovery of a sum of Rs.13,205 on the allegation that the aforesaid amount was due and payable by the respondent to the appellant, against loan/overdraft granted to him m his Account NO‑CD/001859. Leave to defend the suit was granted to the respondent on the ground that the claim in the suit was time‑barred. In the written statement filed by the defendant/respondent in the suit, he, however, denied the loan, and repeated this stand before the Court in his evidence. The trial Court after recording evidence of the parties dismissed the suit of appellant as barred by limitation holding that the promissory note Ex.2 was executed in 1970 and its execution on 20‑5‑1974 as alleged by appellant could not be proved. The learned counsel for the appellant contended that the learned trial Judge was in error in holding that the execution of the pro‑note in May, 1974 could not be proved as it was blank originally when executed in the year 1970. It is contended by the learned counsel that the evidence of Bank Manager in the case clearly shows that in May, 1974. Alternatively it is contended that even if it is assumed that the promissory note was originally executed in the year 1970 and date was subsequently felled in the blank by the appellant, there was no illegality as under section 20 of the Negotiable Instruments Act the appellant had express authority to fill in the promissory note which was blank at the time of its execution. The second contention of the appellant is that the learned Court below failed to take into consideration that the loan of Rs.7,500 was admitted by tile respondent while obtaining leave to defend in the case. It is accordingly contended that when the respondent in his evidence denied consideration of Rs.7,500 he sought permission of Court to confront him with the order granting leave to defend and his application but his prayer was not allowed by the trial Court. Mr.Azizul Hassan, learned Advocate for the respondent on the other hand contends that there is no evidence on record to show that any amount was advanced to the :respondent by the appellant as alleged. It is also contended by the learned counsel that the blank promissory note could not be filled in by the appellant in any case after expiry of the limitation period. After going through the judgment of the learned trial Court and after hearing the learned counsel for the parties I am of the view that it is a fit case for remand to the trial Court for reconsideration of the pleas raised in this appeal and for allowing then to lead further evidence in the case. It is rightly pointed out by the learned counsel for the appellant that in leave granting order of the Court there is positive observation that the respondent had admitted the consideration of Rs.7,500 as well as execution of the pro‑note at the time of obtaining overdraft facility. The contention raised at the time of grant of leave before the Court was that the promissory note was executed in 1970 while it is shown to have been executed in the year 1974 which is wrong. The contention of the learned counsel for the appellant that his client was fully competent under section 20 of the Negotiable Instruments Act to fill in the blanks in Ex.2 was not considered by the learned trial Court in its judgment. In these circumstances, I accept this appeal, set aside the judgment of trial Court and remand the case back with the direction that the case will be re‑heard in the light of the above observations and parties will be allowed opportunity to lead further evidence ' necessary in support of their respective stands. The trial Court will also be at liberty to reframe the issue if necessary in the circumstances of the case. There will be no order as to costs. M.Y.H./H‑37/K Case remanded.