' ARSHAD MAHMOOD, J.---Muhammad Ishaque through this regular first appeal assails the judgment and decree dated 23-4-2001 of the learned District Judge Muzaffargarh decreeing the suit of respondent for recovery of Rs,2,00,000 (Rupees two lac only) on the basis of a pro note, filed under Order XXXVII rules 1 and 2 of the Code of Civil Procedure.
2. Facts of the case in brief are that appellant allegedly obtained a loan of Rs,2,00,000 (Rupees two lac only) from the respondent. On his failure to honour his commitment for return of the loan respondent filed A a summary suit which was contested by the appellant. Out of divergent pleadings of the parties following issues were framed:---
(1) Whether the suit of the plaintiff is barred by time and liable to be dismissed? OPD.
(2) Whether the pro note and the receipt about the disputed amount of Rs,2,00,000 (Rupees two lac) are false, forged and fabricated documents? OPD.
(3) If issue No,2 is not proved, whether the plaintiff is entitled to recover Rs,2,00,000 (Rupees two lac only) from the defendant on the basis of the pro note and receipt dated 13-11-1995? OPP.
(4) Relief.
' On culmination of the trial the suit was decreed in favour of the respondent vide judgment and decree dated 23-4-2001. Hence this appeal.
3. Learned counsel for the appellant submits that the impugned judgment and decree is against law, facts and merits of the case. Seeking support from Sultan Muhammad v. Haji Khair Muhammad and 2 others PLD 2008 Quetta 1 learned counsel adds that the learned trial Court did not frame proper issues. While relying on Mirza Arif Baig v. Mubarik Ali PLD 1992 Lah. 366 contends that learned trial Court has failed to give due weightage to the objection raised by the appellant qua non-maintainability of the suit on account of failure to cancel adhesive stamps. He went on to argue that Report of Finger Print Expert could not be relied upon without examining the said expert in evidence and sought support from Niaz Din v. Mirza Muhammad Ismail and others PLJ 2000 Lah.
429, Nasrullah v. District Judge, Khushab and another 2000 YLR 703 and Mst. Rasool Bibi through Legal heirs v. Additional District Judge, Sialkot and another PLD 2006 Lah.1S1. Last but not least contention advanced on behalf of the appellant was that he had filed an application for initiation of criminal proceedings for forgery in the judicial record but the same was not decided and is still pending. He pressed hard that it was the bounden duty of the learned trial Court to decide pending application of the petitioner and in support of this contention placed reliance on Muhammad Umer v. Muhammad Qasim and another 1991 SCMR 1232, Muhammad Yousaf and 12 others v. Abdul Khaliq and others 1991 SCMR 1981 and Pak Carpet Industries Limited v. Government of Sindh and 2 others 1993 CLC 334.
4. Learned counsel for the respondent, on the other hand, stood behind the impugned judgment and decree. He submitted that the pro note was executed in consideration of a loan which was duly proved during the course of trial and testimony of P.Ws. Could not be shaken despite lengthy cross-examination. He adds that without any proof to the contrary presumption attached to the negotiable instruments is that they are always for consideration. In support of his submissions learned counsel relied upon Muhammad Azizur Rehman v. Liaquat Ali 2007 SCMR 1820. Replying to objection of learned counsel for the appellant regarding pendency of a miscellaneous application it was argued that the same was practically disposed of vide order dated 21-4-2001 although term 'disposed of was not incorporated in the said order.
5. I have heard learned counsel for the parties and examined the record.
6. Miscellaneous application not decided before the final judgment or in the final judgment shall be deemed not to have been pressed especially when decision of the said miscellaneous application did not materially affect the decision of the main case. As regards the objection of learned counsel for the appellant as to inadmissibility of pro note in evidence due to non-cancellation of adhesive stamps, suffice it to say that no issue was framed upon the same nor the parties had asked for it or led evidence in this respect, therefore, the same cannot be pressed into service. Issue findings are as under:--- ' Issue No,1 ' Onus to prove this issue was on the defendant. Except a preliminary objection in the written statement nothing was asserted by the witnesses of defendant to prove this issue. Record, however, reveals that the pro note and receipts were executed on 13-11-1995. The suit was instituted on 26-7-2009, therefore, the same was filed within the prescribed period of three years. Resultantly findings of the learned trial Court on this issue are maintained. Issue No,2.
' Onus to prove this issue was on the defendant. Although defendant while appearing as D. W.1 denied execution of any pro note and his witnesses supported him on this point, however, the case was decided by the learned trial Court against the appellant vide judgment and decree dated 20- 8-1999. On Regular First Appear, the case was remanded back to the learned trial Court with a direction to obtain report from the finger expert to ascertain genuineness or otherwise of the thumb impressions of the defendant/appellant. A report was accordingly called by the learned trial Court which substantiated the claim of the plaintiff/respondent that the appellant had executed the said pro note. Although appellant submitted objections to the report of Finger Expert but he did not deposit expenses for summoning the Finger Print Expert for the purpose of his examination.
According to provisions of Article 129 of the Qanun-e-Shahadat Order, 1984 evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it.
Therefore, oral assertions of the witnesses of defendant were brushed aside by the report of Finger Print Expert as it is a settled principle for preponderance of evidence that documentary evidence takes precedence over oral evidence. In the present case documentary evidence was a report of the neutral expert and he had no animosity towards the appellant. Therefore, appellant miserably failed to prove this issue and the same is decided against him.
Issue No,3.
Onus to prove this issue was on the plaintiff. Plaintiff himself appeared as P.W.1. He produced Safdar Hussain as P.W.2, Tahir Jamil as P.W.3 as marginal witness. Plaintiff also produced documentary evidence as Exh.P.1 and Exh.P.2. All the witnesses produced by the respondent were unanimous on the point that the appellant had taken Rs,2,00,000 (rupees two lac only) as loan from the respondent and executed a pro note and receipt. Witnesses produced by the appellant admitted dispute between the parties over possession and occupation of property but denied any loan advanced to the appellant. Even otherwise it is settled proposition of law that without any proof to the contrary presumption attached to the negotiable instruments is that they are always for consideration. In support of his submissions learned counsel relied upon Muhammad Azizur Rehman v. Liaquat Ali 2007 SCMR 1820. In view of the above observations coupled with the findings on issue No,2, this issue was rightly decided in favour of the respondent. Findings of the learned trial Court on this issue are also maintained.
Relief ' In view of the findings on issues Nos.1 to 3 issue of relief was rightly decided in favour of the plaintiff/respondent and his suit was decreed with costs. Therefore, findings on the issue of relief are also maintained.
7. In view of the above discussion, no ground for interference in the well-reasoned judgment and decree of the trial Court has been made out, therefore, there is no force in this appeal which is dismissed accordingly.