' MIAN HAMID FAROOQ, J.- Present appeal proceeds against judgment and decree dated 2-3-2006, whereby the learned Additional District Judge decreed respondent's suit for recovery of R.s.2,30,000, against the appellant.
2. On 29-8-2005, the respondent/ plaintiff instituted the suit for recovery of Rs.2,30,000,against the appellant/defendant, before the learned District Judge, under the summary procedure provided under Order XXXVII, C.P.C., on the basis of pro note and receipt both dated 7-2-2005. The appellant, when served, filed the application seeking leave to appear and defend the suit, which was allowed by the learned Additional District Judge, subject to furnishing surety bond for the suit amount, vide order dated 7-1-2006. The appellant furnished the surety bond, filed the written statement and the learned trial Court framed the following issues:- "Issues
(1) Whether the. Plaintiff has got no cause of action and locus standi to file the suit? OPD
(2) Whether the plaintiff is estopped by his act and conduct to file the suit? OPD.
(3) Whether the pro note and receipt pro note dated 7-2-2005 are forged, baseless and fictitious documents, hence, the suit is liable to be dismissed? OPD.
(4) Whether the suit of the plaintiff is liable to be dismissed in view of die preliminary objection No.4 of the written statement? OPD.
(5) Whether the suit is counter-blast, and vexatious, henCe, the defendant is entitled to special costs? OPD.
(6) Whether the plaintiff is entitled to the decree of Rs.2,30,000 on the basis of pro note and receipt pro note dated 7-2-2005? OPP.
(7) Relief."
' The learned Additional District Judge called upon the respondent to produce evidence, however, he, instead of adducing his witnesses, filed the application for comparison of appellant's thumb- impression by finger print expert bureau. The learned Court, after finding that the appellant has admitted his thumb impression on the pro note, exhibited the pro note and receipt (Exhs.P.l and P.2) and decreed respondent's suit for recovery of Rs.2,30,000 with costs against the appellant and directed Nawab Masih to appear in the Court for payment of the decretal amount, vide impugned judgment and decree dated 2-3-2006, hence the present appeal.
3. Learned counsel for'the appellant contends that the impugned order is a nonspeaking order and devoid of reasons as well, thus not sustainable in la^. He has further submitted that the suit was decreed only on the statement Of the appellant, who had also stated that he executed the pro note as surety of Nawab Masih. The learned counsel for the respondent, while supporting the impugned judgment, state that as the consent decree was passed, therefore, no appeal is competent.
4. We have heard the learned counsel and examined the available record. The learned trial Court, after framing seven issues, adjourned the case to 13-2-2006 for, recording respondent's witnesses, however, as no witness was produced by him, therefore, the suit was adjourned to 2-3-2006 for the same proceedings and as a last opportunity. On the said date the respondent, instead of producing his evidence, filed the application for comparison of thumb-impression of the appellant and the learned trial Court on the basis of the alleged statement of the appellant, decreed the suit.
It may be noted that on 2-3-2006, the case was decided against the appellant in the absence of his learned counsel. We find from the examination of the impugned judgment that the learned Additional District Judge has evolved a novel procedure for determining the valuable rights of the parties and he, on 2-3-2006, instead of asking the respondent to produce his evidence, for which last opportunity was granted, proceeded to decide the suit only on the basis of so-called statement of the respondent. It is evident from the record that no separate statement of the appellant was recorded, though his thumb-impression and signatures of some other persons were obtained at the margin of the order sheet. It may be noted with concern that the learned trial Court exhibited the documents, i.e., the pro note and receipt, without legally admitting them in evidence, inasmuch as the documents were neither formally proved nor brought on record. The impugned judgment shows that the learned counsel for the plaintiff produced the original documents, which were illegally exhibited by the learned trial Court without adverting to the provisions of law regarding admission of documents in evidence and without affording any opportunity to the appellant to cross-examine the learned counsel for the appellant. We have also examined the written statement, filed by the appellant, and find that he has specifically denied the execution of those documents and, inter alia, pleaded that he did not obtain any loan from the appellant and the pro note is a result of dispute between the respondent and a relative of the appellant, namely, Nawab Masih. In view of the said averments, contained, in the written statement, we feel that it was obligatory upon the learned Additional District Judge to have decided the matter after providing opportunity to the parties to adduce evidence in support of their respective claims notwithstanding that the appellant admitted the execution of pro note and receipt. The learned trial Court framed the issues and called upon the respondent to produce evidence, however, he opted to decide the matter only after receiving the application for comparison of signature of the appellant, which course of action is not recognized under the law. It has been held in the case of Kamran Co. And others v. Messrs Modern Motors and another (PLD 1990. SC 713) that when the appellant appeared and filed the written statement and issues were framed, then it was obligatory on the Court to have decided the case on merits. It appears appropriate to reproduce a portion of the said judgment, which reads as follows:-- "... ... ...The appellant had appeared and tiled the written statement. Thereafter, the issue had been settled.Therefore, it was obligatory on the Court to have decided the case on merits but as no evidence was produced by the respondent a decree could not be passed in the circumstances of the case. The judgments and decrees of the Courts below against the appellants are set aside."
5. As regards Exh.P.1 and Exh.P.2, which were exhibited by the learned trial Court of its own accord, it has already been said that those documents were admitted in evidence illegally and without adverting to the relevant provisions of law in this regard. In the case reported as Mst. Fatima Bibi v.
Muhammad Rafique Ashraf and others (2004 SCM R 959), it was held by the Hon'ble Supreme Court of Pakistan that because the document was not formally brought on record, therefore, the Courts were not obliged to take the same into consideration. A portion of Para. 4 of the, said judgment reads as follows:-- "After having examined the contention of the learned counsel, we are of the opinion that statement so made by him is not correct because birth certificate was not produced by the attorney of the petitioner Mst. Fatima nor she herself entered into witness-box to support its contents. Upon this, learned counsel stated that this document was tendered by the counsel for the petitioner. Suffice it to observe that because document was not formally brought on record, therefore, Courts were not obliged to take the same into consideration. " (Underlining is ours).
In view of the above, we feel that no decree could be passed against the appellant on the basis of the documents, B which were produced by the learned counsel for the plaintiff, who was not allowed to be cross-examined, and exhibited by the learned trial Court of its B own accord without properly and legally admitting the same in evidence.
6. As regards the solitary contention of the learned counsel for the respondent, we feel that this is not a consent decree and the appellant did not agree or give consent anywhere to make payment of the decretal amount. It has been stated in the impugned judgment that Nawab Masih son of Lara received the amount of Rs.1,30,000 from the plaintiff. In view of the said assertion, it can neither be urged nor held that the impugned decree is a consent decree.
7. There is another aspect of the case. The learned trial Court, after passing the decree against the appellant, assumed the role of an executing Court and directed Nawab Masih to appear in the Court on 16-3-2006 for payment of the decretal amount. It is note-worthy that the respondent did not submit any oral or written application for execution of the decree, as contemplated under Order XXI, Rule 11, C.P.C. Additionally, Nawab Masih, who was directed to make payment, is not a "judgment-debtor", as defined c under section 2(10), C.P.C. Inasmuch as he was not party to the proceedings/suit. It is, however not understandable, even from the tenor of the impugned judgment, that under what authority of law the learned Additional District Judge, after passing the decree against the appellant, directed Nawab Masih to make the payment.
8. We have noted that the impugned judgment was passed and the appellant allegedly admitted the execution of the pro note, when his learned counsel was not in attendance and all the proceedings were undertaken in the presence of clerk of the learned counsel for the appellant, who had no authority to represent the appellant. Thus we feel that the appellant was denied the services of his learned counsel and he was condemned unheard.
9. Seeing from any angle, we feel that the impugned judgment and decree suffer from numerous glaring illegalities and cannot be called a "judicial order" within the parameters of law. We are persuaded to set it aside and to remand the case to the learned District Judge for its decision afresh.
10. In view of the above, the present appeal is allowed and the impugned judgment and decree dated 2-3-2006, is set aside with no order as to costs. Resultantly respondent's suit titled "Anwar Shehzad v. Sardar Maish" shall be deemed to be pending before the learned District Judge Khanewal, who shall himself decide the suit after recording evidence of the parties on the issues already framed and of course in accordance with law.