This appeal is directed against the judgment and decree dated 26.8.2009, whereby the suit filed by the respondent in terms of Order XXXVII of CPC on the basis of an alleged pronote was decreed.
2. Brief facts necessary for adjudication of the lis at hand are that the respondent filed a suit for recovery on the basis of a pronote allegedly executed by the present appellant. Apparently, leave to appear and defend the suit was granted to the present appellant. On the divergent pleadings of the parties, issues were framed whereafter the respondent led evidence. Subsequently, upon the failure of the appellant to produce his evidence, his right to produce evidence was closed, where after the trial Court, seized of the matter, vide the impugned judgment and decree dated 16.8.2009, decreed the suit in favour of the respondent.
3. Counsels for the parties have been heard and record requisitioned from the trial Court has been perused.
4. It is contended by the learned counsel that the document, on the basis whereof the suit had been filed, was attested by two witnesses and, therefore, it became a bond and not a pronote and as the document sued upon was not a negotiable instrument, hence no suit under Order XXXVII of the CPC could have been filed and the trial Court had no jurisdiction to adjudicate upon the matter in terms of Order XXXVII of the CPC. In support of his contentions, the learned counsel has placed reliance on the case reported as Abdul Rauf vs. Farooq Ahmad and another (PLJ 2007 Lahore 134(DB)). The learned counsel for the respondent has controverted the contentions raised on behalf of the appellant and further stated that no objection qua jurisdiction was raised before the trial Court.
5. In rebuttal, the learned counsel for the appellant has contended that jurisdiction cannot be vested by consent of parties and the failure of the appellant to raise objection cannot be construed as to vest jurisdiction upon the trial Court under Order XXXVII of the CPC and even otherwise there is no estoppel against the statute.
6. With the help of the learned counsels, we have examined the record and the document in question which is attested by two witnesses. In the above perspective, it is clear and obvious that the question as to whether the document is a negotiable instrument or not, has not been adjudicated upon. The real matter in controversy has escaped adjudication. Consequently, the impugned judgment and decree dated 26.8.2009 is hereby set aside and the case is remanded to the trial Court for its decision afresh including as to the question of jurisdiction and whether the document sued upon is a negotiable instrument or not. The appellant if so advised may seek amendment in the written statement and an additional issue if claimed by the parties in this behalf be framed.
7. Appeal accepted. Case remanded with no order as to costs. The record of the trial Court be remitted back forthwith.