2007L4217 (PLP)

IQBAL HAMEEDUR RAHMAN, J.

The appellant has preferred the instant appeal to challenge the judgment and decree dated 22-2-2003 passed by the learned Additional District Judge, Vehari, whereby the suit of the plaintiff/appellant was dismissed.

2. Brief facts necessary for the adjudication of the instant appeal are that the appellant instituted a suit under Order XXXVII, rules 1 and 2, C.P.C. for the recovery of Rs.500,000 on the basis of promissory note executed on 10-4-1994 by the respondent.

3. The appellant averred in the plaint that the plaintiff/appellant is a private limited company and the suit is being filed through Mr. Muhammad Javaid Akbar Khan, manager who had been authorized under Resolution No.10/94 dated 19-12-1994. The defendant/ respondent has business relationship with the plaintiff/appellant Co. and had been receiving the products of the Co. from-time to time. On 10-4-1994, after rendition of accounts Rs.500,000 became due towards the defendant/respondent. The defendant/ respondent executed a promissory note amounting to Rs.500,000 and also executed an agreement to sell. When the plaintiff/ appellant demanded the amount of Rs.500,000 the defendant/respondent refused to pay back, the amount, therefore, the suit for recovery or Rs.500,000 was filed under the summary procedure under Order XXXVII, rules 1 and 2, C.P.C.

4. The defendant/respondent after service of summonses filed an application for leave to defend, the same was accepted and leave was granted. Written statement was filed. Therefore, the following issues were framed:- (1) Whether the plaintiff has no cause of action or locus standi to file this suit? OPD. (2) Whether the suit is barred by law and plaint is liable to be rejected under Order VII, rule 11, C.P.C. ? OPD (3) Whether the suit is mala fide and not maintainable in its present form? OPD. (4) Whether the defendant' is entitled to get special costs under section 35-A C.P.C.? (5) Whether this Court has no jurisdiction to try this suit? OPD. (6) Whether the defendant executed a pro note in the sum of Rs.5,00,000 (rupees five hundred thousand only) in favour of the plaintiff on 10-4-1994, in connection with outstanding amount due on his part determined by rendition of account? OPP. (7) If foregoing issue is proved in affirmative, whether the plaintiff is entitled to recover the amount from the defendant? OPP. (8) Relief.

5. The plaintiff/appellant produced Mr. Javaid Akbar Khan as P.W.1, Mr. Riaz Hussain P.W.2 and Fazalur Rehman as P.W.3 and also submitted documentary evidence, copy of resolution dated 19-12-1994 as Exh.P.1, promissory note Exh.P.2 and receipt of the promissory note Exh.P.3 and closed the evidence. Thereafter, the defendant/respondent produced himself as D.W.1. The learned trial Court dismissed the suit of the plaintiff/appellant while deciding Issues Nos.1, 6 and

7. The trial Court held that promissory note on the basis of which the suit was filed has not been proved as Riaz Hussain (P.W.2) a scribe of Exh.P.2 could not be considered as the attesting witness unless he signed the documents, as such-like a witness who identified the executant, therefore, the plaintiff/appellant cannot recover the amount on the basis of this promissory note and the learned trial Court dismissed the suit of the plaintiff/appellant.

6. It is argued on behalf of the appellant that the attestation of the promissory note according to Article 17(2)(a) of the Qanun-e-Shahadat Order, 1984 is not required and as it is negotiable instrument, the law does not require its attestation and in this respect, reliance is placed upon Zaheer-ud-Din Sheikh v. Shatab Khan Nasim (NLR 1994 AC 661), wherein it has been held as under:-- "(1) Promissory Note.

Promissory Note is not required to be attested. Requirement as to attestation of Promissory Note prescribed in Art.17(2)(a), Qanun-e-Shahadat Order, 1984, would not override Negotiable Instruments Act (1881) which does not require attestation of Promissory Note. (3) Ibid. Art.79, provision of Art.79 applied to documents, which are required by law to be attested. It does not apply to promissory note, which is not required to be attested. (4) Civil Procedure Code (V of 1908).

Suit based on Promissory Note should not be dismissed on ground of non-attestation of Promissory Note as under law it is not required to be attested". Further argued that the suit of the appellant, in the circumstances, could not have been dismissed on the sole ground and that the impugned judgment has been passed without judicious application of mind and its findings, as such are illegal and based on misreading and non-reading of evidence which are liable to be set aside and the suit of the appellant be decreed.

7. On the other hand, learned counsel for the respondent at the very outset concedes that promissory note being a negotiable instrument, does not require attestation. However, it has been argued that the promissory note on the basis of which the plaintiff/appellant had filed the suit is doubtful; that there are cuttings of the dates and that no independent witness has been produced by the plaintiff/appellant in evidence.

8. We have heard learned counsel for the parties and perused the impugned judgment as well as the record.

9. From the perusal of the impugned judgment, it is apparent that the learned trial Court had non-suited the appellant while deciding Issues Nos.1, 6 and 7 on the sole ground that the appellant could not prove the promissory note by the marginal and attested witnesses. The presumption of the learned trial Court that the promissory note Exh.P.2 is to be attested by two marginal witnesses in accordance with Article .17(2)(a) of the Qanun-e-Shahadat Order, 1984 is apparently wrong. The same is conceded by learned counsel for the respondent, as such non-suiting the appellant on this sole ground cannot be justified. Moreover, the learned trial Court has failed to apply its judicious mind in the appreciation of oral evidence available on the record while deciding the suit, thereby leaving a lacuna in the proper adjudication of the suit.

10. In view of the above circumstances, this R.F.A. is accepted, the impugned judgment is set aside and the case is remanded to the learned trial Court to decide the suit of the plaintiff/appellant after proper appreciation of the oral as well as documentary evidence of the parties. H.B.T./M-88/L Appeal accepted.