2007 PLP 1084 (CLD)

SYED HAMID ALI SHAH, J.

Facts of the case as disclosed in this appeal and stated at Bar by the learned counsel for the parties are that Ali Muhammad Shah appellant filed a suit for recovery of Rs.25,000 (rupees twenty five thousand only) under Order XXXVIII, C.P.C. on the basis of promissory not and receipt dated 23-2-2001. Respondent denied the execution of the pro note as well as the receipt. Learned Court after framing seven issues recorded evidence and through impugned judgment and decree dated 4-5-2005 dismissed the suit. Hence this appeal.

2. Learned counsel for the appellant has contended that the suit was filed under Order XXXVII, C.P.C. but without any grant of leave to defend the suit, the written statement was received and issues were framed. The suit was treated, as an ordinary suit thus the, proceedings before the learned trial Court are nullity. He has then contended that the learned trial Court dismissed the suit on the score that two attesting witnesses of pro note and receipt have not entered into the witness-box. One marginal witness namely Ashiq Hussain appeared as P.W.3 while other marginal witness Peer Suleman Shah has not been examined by the plaintiff. Learned counsel has further contended that mere non-production of Peer Suleman Shah is not fatal to the case of the appellant as presumption of truth is attached to promissory note in terms of Article 120 of the Negotiable Instruments Act. Promissory note stood proved by the statement of P.W.3/scribe and statement of the plaintiff.

3. Learned counsel for the respondent stood behind the impugned judgment and decree. He has submitted that the Court has rightly dismissed the suit as marginal witnesses have not appeared and there are discrepancies, among the statements of the witnesses who were examined by the petitioner/plaintiff:

4. Heard learned counsel for the parties and examined the record.

5. So far as question of grant of leave is concerned, there is no denial of the fact that the respondent/defendant has not filed a separate application for leave to defend the suit. He has filed an application for setting aside the ex parte order dated 24-2-2004. Perusal of the order dated 24-2-2004 reveals that the respondent made two prayers in his application one for setting aside ex parte order and the other for grant of leave to appear and defend the suit. First prayer was granted on the basis of conceding statement of the learned counsel for the plaintiff namely Mehr Muhammad Islam, Advocate. The Court granted the respondent leave to defend the suit on the concessionary statement of learned counsel for the appellant though no statement of learned counsel for the appellant was recorded. It has been incorporated in order dated 24-3-2004 that the learned counsel had no objection for the acceptance of the application for leave to defend. The order passed by the Court has precedence over the assertions of the parties or their learned counsel to the contrary. Case of "Fayyaz Hussain v. Akbar Hussain and others" (2004 SCMR 964) can be referred in this respect. There is no force in the argument of the learned counsel for the appellant that proper procedure has not been adopted in the trial of the suit.

6. Adverting to the impugned judgment and decree, it is emanated from the impugned judgment that the learned trial Court has solely based its conclusion on the non-production of the second marginal witness in the witness-box. Non-appearance of a marginal witness is fatal to the case where an ordinary document is to be proved like an agreement to sell etc. Since presumption of truth is attached to the promissory note, in terms of section 120 of the Negotiable Instruments Act, therefore, mere non-production of one of its marginal witnesses is not fatal specially in the circumstances when scribe, promisee and one marginal witness have entered into witness-box to prove its veracity.

7. Learned counsel has drawn erroneous conclusion that failure to examine one marginal witness, defeats the provisions of Article 17(2) of the Qanun-e-Shahadat Order, 1984. Perusal of the document Exh.P-1 reveals that it has been signed and attested by two marginal witnesses, which meets the requirement of section 17(2) of Qanun-e-Shahadat Order, 1984.

8. Plaintiff/appellant has moved an application before the learned trial Court for referring the disputed signatures for the opinion of the Handwriting Expert. Learned Court has proceeded to pass the final judgment, without first deciding the pending application. Such order is not sustainable in the eyes of law. The cases of "M/s Waheed Corporation and another v. Allied Bank of Pakistan" (2003 CLD 245), "Sheikh Muhammad Kashif v. Askari Leasing Limited" (2004 CLD 1645) and "M/s. M.A. Chaudhry and others v. National Bank of Pakistan" (2005 CLD 875) can, be referred in this respect.

9. For the foregoing, the impugned judgment and decree dated 4-5-2005 is set aside with a direction to the trial Court to decide the pending application of the appellant for referring the disputed signatures for the examination of the Handwriting Expert and then decide the matter on the basis of available evidence and. also on the opinion of the Handwriting Expert, if need be.

10. Both the parties may approach the trial Court for leading additional evidence which request, the Court shall decide within the parameters of law strictly on its own merits. M.H./A-130/L Case remanded.