' The present first appeal proceeds against the judgment and decree, dated 24-6-2000, whereby the learned Additional District Judge, Jhang, dismissed the suit for recovery of Rs.50,000, filed by the appellant, under the summary procedure provided under Order XXXVII, C.P.C.
2. Brief facts leading to the filing of the present appeal are that the appellant filed a suit for recovery of Rs.50,000 against the respondent before the learned Additional District Judge, Jhang, on the basis of .a promissory note. It was averred in the plaint that the respondent borrowed a sum of Rs.50,000 in the presence of Shaukat Ali and Muhammad Yaqoob and on 2-8-1999 a pro note to that effect was written/executed. Subsequently, the respondent refused to return The loan amount which necessitated the filing of the suit. After the receipt of the summons, the respondent filed an application for leave to appear and defend the suit, which was allowed by the learned trial Court subject to the filing of surety bond in the sum of Rs.50,000 on or before 26-2-2000. The said order was duly complied with by the respondent, who furnished the surety bond as directed by the learned trial Court. The suit was, thereafter, contested by the respondent by way of filing the written statement, inter alia, contending that he purchased some pesticides on credits from one Manzoor Hussain, who procured two blank promissory notes duly signed by him and thereafter Manzoor Hussain filed a suit for recovery of Rs.22,000 on the basis of one promissory note. It was averred in the written statement that the matter was resolved on special Oath of the respondent, wherein he admitted to have owed a sum of Rs.9,000 and on the statement of the respondent a decree for a sum of Rs.9000 was passed against him. Manzoor Hussain threatened the respondent at that point of time that he will use other promissory note and pursuant to that threat, the said suit has been filed by the appellant at the behest of Manzoor Hussain.
3. Out of the divergent pleadings of the parties following issues were framed: ' ISSUES.
' Whether the plai Liff has no cause of action and locus standi to file this suit? OPD.
' Whether the plaintiff is estopped by his words and conduct to bring this suit? OPD.
' Whether the suit is not maintainable in its present form? OPD.
' Whether the plaintiff is entitled to the decree for the recovery of Rs.50,000 from the defendant on the basis of promissory note? OPP.
(5) Relief.
The parties led their evidence in support of their respective case and the learned Additional District Judge dismissed the suit vide judgment and decree, dated 24-6-2000, hence, the present appeal.
4. Learned counsel for the appellant has contended that the respondent has admitted his signatures on the pro note and according to section 118 of the Negotiable Instruments Act, a presumption has been attached with the promissory note that the same is with consideration. It has next been contended that as a matter of fact the respondent was not entitled for the grant of leave to appear and defend the suit, as the application filed by the respondent, for the grant of leave, was slipshod and perfunctory. Conversely, the learned counsel for the respondent has submitted that although the signatures on the promissory notes were admitted by the respondent yet its execution was subsequently denied by the respondent. He further elaborated that the facts and circumstances under which the respondent signed the blank promissory note were duly explained in the written statement, which hake been discussed and believed by the learned trial Court, thus, the impugned judgment does not call for any interference by this Court.
5. The most crucial issue and the pivotal point to be determined by this Court in appeal is, as to whether the appellant is entitled to the recovery of Rs.50,000, on which question, Issue No.4 was formulated. In order to prove this issue, the appellant produced only one marginal witness and himself appeared as P.W.2. Conversely, the respondent produced as many as three witnesses,.
6. Coming to the first contention raised by the learned counsel for the appellant, it may be noted that it is evident from the contents of the written statement that the respondent did not at all admit the execution of the promissory note, which was made basis for filing the recovery suit. It has specifically been asserted by the respondent that one Manzoor Hussain got signed two blank promissory notes from him and out of the two said promissory notes, previously Manzoor Hussain filed a suit which was decreed on the statement of the respondent to the extent of Rs.9,000.
Whereas now the second promissory note has been utilized. It has been held in Muhammad Amin v. Ghulam Muhammad (PLD 1993 Lahore 569) that mere presence of signatures on the pro note by the defendant would not mean that execution of pro note had also been admitted by him. In this case, the appellant has failed to prove through the production of evidence that any consideration was, in fact, passed on to the respondent. Section 118 of Negotiable Instruments Act is not at all attracted in the present case because section 118 presupposes that the execution of pro note is admitted, in that case only the presumption of passing of consideration will be attached to it. In the present case as observed above, the execution itself of the promissory note was disputed by the respondent. It was further elaborated, through the written statement as well as the production of evidence of the respondent, the circumstances under which the blank promissory notes were got signed. The appellant could not produce cogent evidence to prove that in fact the promissory note was legally executed by the respondent and that the consideration mentioned in the promissory note was in fact passed on to the respondent. The appellant, although alleged in the plaint as well as in his statement that the respondent received a sum of Rs.50,000 from the appellant in the presence of Shaukat Ali and Muhammad Yacioob, yet he failed to produce Shaukat Ali as one of his witness which was the most crucial witness. No explanation for non-production of this witness is forthcoming from the appellant. He has failed to show why Shaukat Ali has not been produced and under the circumstances, the presumption would be that the said witness has purposely been withheld. After going through the record of the learned trial Court, I am of the considered view that the appellant failed to prove that whether the promissory notes were legally and validly executed by the respondent and that in fact a sum of Rs.50,000 was given to the respondent in the presence of the witnesses. In view of this, the reliance of the learned counsel on the provisions of section 118 of Negotiable Instruments Act is wholly misplaced and, thus, is devoid of force.
7. As regards the next contention raised by the learned counsel for the appellant, I have examined the application for the grant of leave to appear and defend the suit filed by the appellant. Although the contents of the application are sketchy, yet at the time of arguments, the respondent personally appeared before the learned trial Court and denied the execution of the pro note and that appears to be the main reason, which persuaded the learned trial Court to grant of leave to appear and defend the suit to the respondent. The learned trial Court while granting leave, undoubtedly was conscious about the principles governing the grant or refusal of leave in such- like suits and, therefore, he did not grant the said leave unconditionally but tagged a condition to file surety bond to the tune of Rs.50,000. The learned trial Court took adequate pre-cautions that in case the suit of the appellant is decreed in that case there should not be any problem for him in the execution of the decree, therefore, he saddled the respondent with a liability to furnish the surety bond. Needless to mention that the learned trail Court only granted a period of 9 days to the respondent for the furnishing of the surety which order was duly complied with by the respondent within the stipulated period and according to the satisfaction of the learned trial Court, who accepted the surety bond on 26-2-2000. This is one of the circumstances to show the bona fides on the part of the respondent.
8. Admittedly, the leave granting order, dated 17-2-2000 was not challenged by the appellant before any higher forum, thus, the same has attained finality. Although, under the law, the interlocutory orders merge in these final order and same can be assailed at the time of challenging the final order but since this is a summary suit, therefore, the matter ended when the leave application was allowed as thereafter the suit was to be proceeded with under the same procedure which has been prescribed while proceedings when the suit instituted in the ordinary manner as per the provisions of Order XXXV II, C.P.C.
9. Learned counsel for the respondent while defending the appeal has placed reliance on a reported case Muhammad Amin v. Ghulam Muhammad (PLD 1993 Lahore 569). I have gone through the judgment rendered by this Court, while is apt to the circumstances of the case and fully applicable to the proposition raised in the present appeal.
10. I have examined the judgment rendered by the learned Additional District Judge which is unexceptionable and has been rendered keeping in view, the documents on record and law on the subject. The impugned judgment is well-reasoned, shows the application of judicial mind and I have no reasons to differ with the findings. Rendered by the learned trial Court.
11. In view of the above findings and conclusions, the present appeal is devoid of merits, thus, the same is dismissed with no order as to costs.
12. Office is directed to transmit the record to the learned trial Court immediately.