P L D 1993 Lahore 569 (PLP)

This appeal is directed against judgment and decree, dated 23-5-1991 passed by the learned Additional District Judge, Bahawalpur through which after dismissing the application of the appellant for grant of leave to appear and defend the suit filed by the respondent for the recovery of an amount of Rs.1,82,280.00 on the basis of pronote the suit has been decreed.

2. In the application riled by the appellant for grant of leave to appear and defend the suit it was specifically stated that he had business dealings with the respondent/plaintiff for supply of poultry feed and it was a continuing business and was a matter of settlement of accounts. The signatures of the appellant were obtained on the promissory note as security for the payment of the dues which may become due from the appellant regarding purchase ' of the poultry feed from the respondent and as a matter of fact the amount mentioned in the pronote was not in fact recoverable and the same was never received by the appellant as such it was without consideration.

3. The learned Additional District Judge held that since presence of his signatures by the appellant on the pronote had been admitted therefore, it was admission of execution of the pronote as such was not a fit case for grant of leave to appear and defend the suit and proceeded to reject the application and pass decree in favour of the respondent.

4. From the mere presence of signatures on the pronote by the appellant as admitted by him it has been assumed as if the execution of the pronote had been admitted. It is firmly settled law that the expression 'execution' of a document does not mean mere presence of signatures on it of the executant where a plea had been raised that the same were obtained for any other purpose and the amount mentioned therein was never paid to him. The expression "execution" has always been understood to mean that the executant had put his signatures after fully understanding the contents of the document as correct. A plea was raised that there were business dealings between the A parties and the case was of settlement of accounts regarding sale and purchase of poultry feed and no amount was paid to the appellant under pronote, therefore, it was erroneously assumed as if admission of appellant about his signatures on the pronote in these circumstances amounted to the admission of execution of the document which includes passing of consideration. It is also well-settled law that if the Court intended to proceed to pass order or decree on the basis of admission made by a party, the admission as a whole has to be taken into consideration and no part of the same could be separated and judgment passed on the basis of that.

5. In the reply filed by the respondent to the said application no mention was made regarding averments of the appellant that there were business dealings between the parties for sale and purchase of poultry feed. The appellant appended with the application copies of Khata regarding sale of poultry feed by the respondent to the appellant but it appears that the same has not been given due consideration.

6. Learned counsel for the respondent when questioned as to how he could support the impugned order, judgment and decree placed reliance on judgment reported as Mst. Sajida Abbas Zaidi v. Syed Arshad Ali Jafri 1990 CLC 1018 to contend that where the signatures on the pronote had been admitted to be that of the defendant in such suit under Order 37, C.P.C. decree outright could be granted and prayer for grant of leave to appear and defend the suit could be declined as the onus shifted to the defendant to establish that consideration did not pass. I am afraid, the facts of this reported case are different from the present one in which a specific plea had been raised that no consideration pissed and there were business dealings between the parties and the matter required settlement of accounts which plea was supported by the copies of Khatas maintained. Learned counsel for respondent, however, admitted that the poultry feed business is being run by the son of the respondent and the appellant used to purchase property feed from his son. This plea was not raised in the written reply of the application. From this it prima facie appears that the amount in dispute might be relatable to the said sale and purchase of poultry feed which required further inquiry and recording of evidence which could only be done if the appellant had been granted leave to appear and defend the suit because in that case alone he could discharge the onus which according to learned counsel for the respondent had shifted to him.

7. The order passed by learned Additional District Judge, dated 23-5-1991 for dismissal of application of the appellant for grant of leave to appear and defend the suit and passing the decree is not sustainable. The appeal is accepted. The said order, judgment and decree is set aside. The application of the appellant for grant of leave to appear and defend the suit is accepted. He is granted leave to appear and defend the suit subject to his furnishing security. to the satisfaction of the trial Court in the sum of Rs.1,82,280.00 within one month from today i.e. on or before 8-4-1993. The parties are left to bear their own costs.

8. The parties are directed to appear before the trial Court on 8-4-1993. A.A./M-1054/L Appeal accepted.