MUHAMMAD JEHANGIR ARSHAD, J.---This R.F.A. Is directed against the judgment, dated 26-2-2004 passed by learned Additional District Judge, Keror, District Layyah dismissing appellant's suit for the recovery of Rs.8,10,000 filed by him under Order XXXVII, C.P.C. On the basis of pro note dated 31-8- 2002.
2. The facts in brief are that Muhammad Waris appellant filed suit before the learned Additional District Judge in summary jurisdiction under Order XXXVII, C.P.C. For the recovery of Rs.8,10,000 on the basis of a pro note and receipt allegedly executed by respondent on 31-8-2002. The suit was filed on 24-4-2003 and the learned Additional District Judge on 24-4-2003 directed issuance of summon to the respondent. The respondent ultimately entered appearance before the learned trial Court on 24-5-2003 and at his request the case was adjourned to 31-5-2003, on which date, application and defend the suit was moved and the learned trial Court vide order dated 22-10- 2003 granted the respondent leave to appear and defend the suit subject to furnishing surety bond of the disputed amount and adjourned the matter to 29-10-2003 for the purposes of furnishing surety bond as well as filing of written statement by the respondent. As on 29-10-2003 therefore, the learned trial Court framed the written follow following issues on 3-10-2003 and put the parties at trial:-- Issues
(1) Whether .The plaintiff is entitled to recovery of Rs.8,10,000 on the basis of pro note dated 31-8- 2002? OPP
(2) Whether the plaintiff has got no cause of action or locus standi to file this suit? OPP
(3) Whether the plaintiff is estopped by his words and conduct to bring this suit? OPD
(4) Whether the suit is mala fide and same is filed to harass the defendant, if so, whether the defendant is entitled to special costs to the tune of Rs.25,000 under section 35-A, C.P.C.? OPD
(5) Relief.
3. As the appellant despite obtaining several adjournments failed to produce the evidence ultimately the learned trial Court vide judgment dated 26-2-2004 closed the evidence of the appellant and appeal dismissed the suit under Order XVII, rule 3, C.P.C., hence this app
4. It has been argued by the learned counsel for the appellant that as on 26-2-2004 neither the appellant nor his counsel was in presence, hence the learned trial Court instead of closing the evidence of appellant and proceeding to decide the suit under Order XVII, rule 3, C.P.C. Read with Order IX, rule 8, C.P.C. Should have dismissed the suit for non-prosecution, therefore, the judgment of the learned trial Court closing the evidence of the appellant on the fateful date i.e. 26-2-2004 under Order XVII, rule 3, C.P.C. And dismissing the suit for of evidence was a wrongful exercise of appellant jurisdiction. In support of his contention learned counsel for the appellant has placed reliance on the case of Messrs Transtech Ltd. v. Messrs Pakistan Tobacco Company Ltd. 2004 MLD 1242 (Lahore) (D.B.) and the case of Muhammad Ramzan v. Amir Afzal 2004 MLD 1204. It has further been argued by the learned counsel for the appellant that even otherwise there was no justification for the learned trial Court to have directed the appellant to lead evidence in the presence of express admission of the respondent regarding execution of pro note but terming the same having been executed as a security; and without consideration.
5. On the other hand, learned counsel for the respondent has argued that as the appellant failed to produce the evidence despite obtaining several opportunities, hence the course adopted by the learned trial Court was within law and thus, the suit of the appellant was correctly dismissed.
Learned counsel for the respondents has also raised objection that the appeal filed by the appellant was barred by time as the court-fee was furnished after the expiry of period of limitation for filing of the appeal.
6. We have considered the abovementioned arguments of the learned counsel for the parties and have also perused the record of the trial Court.
7. In the light of the above mentioned judgments of this Court cited above there is a considerable force in the contention of the learned counsel for the appellant that on the fateful dated i.e. 26-2- 2004 the learned trial Court instead of closing the evidence of the appellant by proceedings in terms of Order XVII, rule 3, C.P.C. Should have proceeded to dismiss the suit of the appellant as required by Order XVII, rule 2 read with Order IX, rule 8, C.P.C. And the learned counsel for the respondent has not been able to cite any law/judgment holding otherwise. Even otherwise law favours decision on merits and discourages non-suiting the party on mere technicalities as held by Honourable Supreme Court of Pakistan in 1999 SCM R 105. We are also persuaded to hold that as the respondent has expressly admitted the execution of the pro note in dispute but has taken the plea that the same was executed as a security without consideration and, therefore, instead of forcing the appellant to start his evidence the onus should have been placed on the respondent to prove that the disputed pro note was executed as a security and thus, the same was without consideration because in the light of the provisions contained in section 2(22) of the Stamp Act a pro note even executed as a security is to be considered as with consideration unless proved otherwise. Reliance is placed on the case of Muhammad Sharif v. Muhammad Hashim PLD 1987 Kar.
79. Therefore, we are satisfied that instead of closing the evidence of the appellant and dismissing suit in terms of Order XVII, rule 3, C.P.C. In the absence of appellant as well as learned counsel on 26-2-2004 the learned trial Court should have proceeded in terms of Order XVII, rule 2 read with Order IX, rule 8, C.P.C. Dismissing the same for non-prosecution.
8. So far as the objection of the learned counsel for the appellant with regard to the -appeal being time-barred is concerned we have examined the appeal file and come to the conclusion that although the appeal was filed within time yet the same was not accompanied with the court-fee of Rs.15,000 which was supplied on 14-7-2004 and on an objection raised by the office on 16-7-2004 application under section 5 of the Limitation Act seeking condonation of delay has also been filed.
It is an established principle of law that once plaint/memo. Of appeal has been filed within the time fixed under the Limitation Act the supply of court-fee at some subsequent stage is deemed to have retrospective effect from the time of original filing of plaint or memo. Of appeal. PLD 1984 SC 289 and PLD 1990 SC 42 are the authorities on the point. The objection of the learned counsel for the respondent regarding limitation is overruled.
9. For what has been discussed above this R.F.A. Succeeds, resultantly the judgment and decree of the learned trial Court is set aside and the case is remanded to the learned trial Court for deciding the same afresh after granting one last opportunity to the plaintiff for production of his evidence subject to payment of costs of Rs.3,000 (paid to Mr. Athar Rehman's Khan, Advocate, learned counsel for the respondent before Court). The parties are directed to appear before the learned Additional District Judge, Keror, District Layyah on 18-7-2006 and the learned trial Court shall grant one opportunity to the appellant for producing all his evidence. In case of failure of producing evidence on the said date without any just and sufficient cause the learned Court/Additional District Judge shall be at liberty to invoke the provisions of Order XVII, rule 3, C.P.C. Copy of this order shall immediately be remitted to the learned trial Court/Additional District Judge, Keror, District Layyah.