' SHER MUHAMMAD KHAN, J.---Through this regular first appeal, appellant has challenged the legality, validity and proprietary of the judgment/decree passed by learned Additional District Judge-I, D.I. Khan on 5-5-2009 in favour of respondent against him for payment of Rs,3,20,000 on the basis of promissory note executed on 14-2-2005.
2. Facts of the controversy between the parties are that respondent filed suit for recovery bf Rs,3,20,000 against appellant, on the strength of promissory note allegedly executed by appellant on 14-2-2005 in favour of respondent. The suit was filed on 18-7-2005, the learned trial Court through due process summoned the appellant who was served on the same day. The order sheet of the trial Court reveals that appellant personally received the summon and the process server obtained his signature on its back but he did not attend the Court on the date fixed i.e. 8-9-2005, therefore, after recording the statement of the process server in the Court as CW, the learned trial Court initiated ex parte proceedings against the appellant and the case was fixed for consideration on 24-9-2005.
3. On 9-9-2005 appellant submitted an application for grant of leave to appear and defend the suit which was allowed on 15-11-2005 on payment of Rs,1000 as cost payable to respondent and leave to appear and defend was also granted subject to furnishing security bond in the sum of Rs, 3,20,000.
4. In compliance with the order of the trial Court appellant furnished security bond as per directions of the Court dated 22-11-2005 and also filed written statement on 23-11-2005.
In the light of divergent pleadings of the parties, the learned trial Court framed the following issues on 6-12-2005:--
(1) Whether the plaintiff has got a cause of action?
(2) Whether suit of the plaintiff is competent in the present form?
(3) Whether suit of the plaintiff is within time?
(4) Whether this Court has got the jurisdiction to entertain the present suit?
(5) Whether the plaintiff is estopped to sue by his own conduct?
(6) Whether any friendly relation exists between the parties and on that score defendant borrowed Rs,3,20,000 from the plaintiff?
(7) Whether the pronote and receipt dated 14-2-2005 is based on fraud, bogus and fictitious?
(8) Whether the plaintiff is entitled to the decree as prayed for?
(9) Relief.
' Thereafter the parties were directed to submit their respective list of witnesses and after that evidence of the parties were recorded.
5. Respondent, in support of his claim examined Muhammad Ramzan Clerk GPO, D.I. Khan as P.W.1, who testified that registry receipt No, 1038 along with A.D. Card which have been issued from GPO, D.I. Khan on 1-6-2005 at the address of appellant, the documents were exhibited as Exh. P.W.1/1 and Exh. P.W.1/2 respectively. Muhammad Tanveer son of Ghulam Sarwar recorded his statement as P.W.2, who testified his signatures as marginal witness on the promissory note and receipt, executed on 14-2-2005, correct and duly affixed by him at the time of execution of promissory note.
He also deposed that the promissory note and receipt were signed and thumb impressed in his presence by appellant, respondent and other marginal witness Muhammad Zubair.
6. Respondent Akhtar Ali's statement was recorded as P.W.3, who supported the averment of the plaint and also exhibited the original promissory note and receipt as Exh. P.W.3/1 and Exh.P.W.3/2. It is pertinent to mention here that no objection was raised by appellant at the time of exhibiting the said documents. Muhammad Zubair Shaheen, another marginal witness of the promissory note and receipt recorded his statement as P.W.4 who also supported the execution of the documents in his presence and verified the signatures and thumb impression of the appellant. After that, statement of Muhammad Sibtain petition writer was recorded as P.W.5 and then respondent closed his evidence. P.W.5 not only stated that Exh.P.W.3/1 and Exh.P.W.3/2 were written by him but also produced his register pertaining to the entry of documents written by him, wherein at S. Nos.
141 and 142 on 14-2-2005 the promissory note and receipt were duly incorporated as Exh.P.W.5/1 and Exh.P.W.5/2, which too were signed and thumb impressed by the appellant, respondent and marginal witnesses. He also stated that the parties and the marginal witnesses have duly signed all the exhibited documents in his presence.
7. In rebuttal appellant himself appeared in the trial Court as D.W.1 and deposed that respondent was neither previously known to him nor he has advanced any loan to him. He contended that the receipt and promissory note relied upon by respondent are fake, fictitious and bogus, which he never signed or thumb impressed. He also got examined one Munawar Zarif son of Mosam Khan as D.W.2, who stated that both the parties are known to him and financial position of the appellant is more sound than respondent, therefore, it does not appeal to common sense that a landlord would obtain loan from scrap dealer.
8. On 4-12-2006 the appellant submitted an application for allowing amendment in his written statement but that application was dismissed vide order dated 9-2-2007, after hearing arguments of the learned counsel of the parties.
' On 16-4-2007 the appellant submitted another application, purportedly under Article 163 of the Qanun-e-Shahadat Order, 1984 praying therein that he may be allowed to take special Oath in support of his written statement and the case may be decided on the basis of his special Oath, which was also dismissed on 21-6-2007.
9. On 9-4-2009 the appellant submitted an application for allowing him to produce additional evidence and to summon Patwari Halqa of Mauzas D.I. Khan, Botaiser and Muharrir of the Court of learned Senior Civil Judge, D.I. Khan along with their respective records.
10. After hearing arguments of learned counsel of the parties, the learned trial Court dismissed application of the appellant and decreed the suit of respondent with cost vide judgment/decree dated 5-5-2009, hence, the instant appeal.
11. Learned counsel appearing on behalf of appellant argued that the learned trial Court had no jurisdiction to adjudicate upon the matter because the document relied upon by respondent squarely falls under the definition of receipt and it is not a promissory note for the reason that it has been signed by two marginal witnesses. According to his contention the promissory note is not supposed to be signed by any marginal witness and when it is so signed then it looses its status of promissory note and falls in the definition of receipt and the trial Court could not took cognizance under Order XXXVII of Civil Procedure Code.
12. His next contention was that under section 118 of the Negotiable Instruments Act, 1881 there are eight ingredients of Negotiable Instruments Act:--
(a) Of Consideration.---that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
(b) As to date. ---that every negotiable instrument bearing, a date was made or drawn on such date;
(c) As to time of acceptance.---that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;
(d) As to time of transfer. ---that every transfer of a negotiable instrument was made before its maturity;
(e) As to order of indorsement.---that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;
(f) As to stamp.---that a lost promissory note, bill of exchange or cheque was duly stamped;
(g) That holder is a holder in due course.---that the holder of a negotiable instrument is a holder in due course: provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of any offence or fraud, or has been obtained from the .Maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.
13. According to him there is no mention of signing it by the marginal witnesses. He stressed that if all the conditions mentioned in section 118 of the Act ibid have been fulfilled then presumption of truth is attached to the instrument and the burden of proof shifts from the plaintiff to defendant and the examination of marginal witnesses is not requirement of law. He placed reliance in the cases titled Khalil ur Rahman v. Muhammad Shafee 1993 MLD 1144, Abdur Rauf v. Farooq Ahmad and another reported in PLD 2007 Lahore 114, PLD 2007 Lah. 121, 2007 CLD 114, Muhammad Asghar v.
Mian Muhammad Hussain 2010 CLC 22, Aamir Tofail v. Muhammad Siddique and another 2006 CLD 91 and Altaf Sarwar v. Shamas Din 2005 YLR 2614.
14. Learned counsel appearing on behalf of respondent vehemently opposed the arguments of the learned counsel of the appellant and argued that no specific form of promissory note has been provided in the Negotiable Instruments Act of 1881 it is the contents and wordings of the deed which should be given importance and in the light of that it should be decided that whether the instrument comes in the definition of promissory note, bond or receipt. He further contented that if the contents of the document is of such a nature that it falls in the definition of promissory note then merely on the ground that it has been signed by marginal witnesses would not loose the status of promissory note. He referred to the contents of the deed Exh.P.W.3/1, wherein the appellant has undertaken unconditionally to pay Rs,3,20,000 to the respondent on demand. He further argued that receipt Exh.P.W.3/2 is basically the acknowledgment for receiving the amount and execution of the promissory note, therefore, both the documents are separate and having no adverse effects on each other. It was also argued that though signing of promissory note by marginal witnesses is not sine qua non for authenticity of promissory note but at the same time it does not loose its credibility merely on the reason that it has been signed by marginal witnesses.
His next contention was that the proceedings under Order XXXVII, C.P.C. Are special in nature wherein it has been left at the discretion of the Court for granting leave to appear and defend to defendant and there is no other material difference between the Court exercising powers under Order XXXVII of the Civil Procedure Code and ordinary course of law. In the instant case the appellant was provided full opportunities to appear and defend himself like any other ordinary Court of law exercising jurisdiction under Civil Procedure Code. In spite of personal service the learned trial Court not only set aside the order of ex parte proceedings, initiated against him, but leave to appear and defend was also granted and full opportunity of producing evidence was afforded to the appellant, therefore, no prejudice has been caused to the appellant, warranting interference by this Court.
15. From perusal of the record and hearing the arguments of the learned counsel of the parties it transpires that appellant, from the first day has manipulated to delay the proceedings of the case on one pretext or other, which is evident from the record of the trial Court. Some of the instances enumerated above are reproduced herein.
16. On the first day he was properly served personally but intentionally avoided to appear before the Court on the date of hearing i.e. 8-9-2005. The learned trial Court, to secure the ends of justice took lenient view and not only set aside the order of initiating ex parte proceedings but also granted leave to appear and defend to the appellant, which he fully utilized.
17. Again to achieve his object for delaying the proceedings of the case the appellant submitted an application for allowing him to amend his written statement on 4-12-2006, at a stage when evidence of respondent had already been closed and sufficient opportunities were provided to appellant for producing his evidence, in spite of the fact that the proceedings under Order XXXVII, C.P.C. Are of summary nature and there is no scope for entertaining such like application. Two months were taken in deciding the said application and ultimately it was dismissed on 9-2-2007.
The appellant then sought adjournment on the ground that he is challenging the order of the trial Court before the higher forum but never challenged the same.
18. Another application purportedly under Article 163 of the Qanune-Shahadat, was filed with the prayer to decide the case by administering Special Oath to him in support of his written statement.
The decision of this application also took more than two months, which was dismissed by the learned trial Court on 21-6-2007.
19. Appellant had impugned the order of the trial Court dated 21-6-2007 before this Court through Civil Revision No, 226 of 2007, which was then withdrawn on 2-11-2007 on the pretext that he intends to approach the trial Court for obtaining opinion of finger prints expert in respect of his thumb impressions affixed on the promissory note and receipt Exh.P.W.3/1 and Exh.P.W.3/2. After receiving the case file in the trial Court, it took about 2-1/2 years but appellant never applied to the trial Court for sending the documents Exh.P.W.3/1 and Exh.P.W.3/2 for obtaining finger prints expert opinion regarding his thumb impression available on the above mentioned documents.
20. He also never seriously objected to the jurisdiction of the learned trial Court and did not submit specific application for return of the plaint under Order VII, Rule 10, C.P.C.
21. As far as the question of jurisdiction, raised by learned counsel for the appellant on the grounds that Exh.P.W.3/1 is not a promissory A note because it has been signed by two marginal witnesses, is concerned. In my humble' view this argument has no force. The judgments of the Honourable Courts, relied upon by learned counsel for the appellant also do not support his contention. In the case of Khalil ur Rahman v. Muhammad Shafi reported in 1993 MLD 1144, the plaintiff himself withdrew his suit, filed under Order XXXVII, C.P.C. With permission to file it in ordinary Court for the reason that on the basis of "bond" the cases are not triable under Order XXXVII, C.P.C. His application was dismissed and revision petition also met the same fate. The question of jurisdiction was not agitated before the Honourable Karachi High Court in the above mentioned judgment. It is note worthy to mention here that the judgments of the august Supreme Court reported in 1973 SCMR 332 and 1973 SCMR 595-were thoroughly discussed by the Honourable Karachi High Court and it was held that the same judgments are not applicable to the facts of that case. Another case relied upon by learned counsel for the appellant of Abdur Rauf v. Farooq Ahmad and another reported in PLD 2007 Lahore 114, PLD 2007 Lah. 121, 2007 CLD 114, is also of no help to the appellant because in the said judgment the question for determination was that the promissory note not signed by marginal witnesses is admissible in evidence or not. Defendant in that case had raised objection in the appellate Court that the promissory note is not admissible in evidence because it was not attested by two marginal witnesses. The Honourable Lahore High Court held that it is not necessary to sign the promissory note by marginal witnesses. It was also held that if some one has signed it as marginal witness his status will be considered as indorser. Again no question of jurisdiction was agitated. That suit was filed under Order XXXVII, C.P.C. Which was decreed and appeal was dismissed.
22. The Judgments reported in 2005 YLR 2614, 2006 CLD 91 and 2010 CLC 22 are also not relevant to the facts and circumstances of the instant case.
23. Under Order XXXVII, Rule 2, C.P.C. All suits upon bill of exchange, hundies or promissory notes, may, in case the plaintiff desires to proceed hereunder, be instituted by presenting a plaint in the forum prescribed. The question arises that whether the document relied upon by respondent is negotiable instrument in the shape of bill of exchange, hundy or promissory note and is triable by the same provision of law or not. For the said purpose the contents of the deed is material to be taken into consideration. If the contents of the deed fall in the definition of section 13 of the Negotiable Instruments Act, 1881, then the plaintiff has the option to file the suit in the ordinary Court of Civil jurisdiction or in the special Court exercising the powers vested in them under Order XXXVII, C.P.C.
24. Promissory note has been defined in section 4 of the Negotiable Instruments Act, 1881 which states that a "promissory note" is an instrument in writing (not being a bank note or a currency note) containing an unconditional undertaking, signed by the maker, to pay (on demand or at a fixed or determinable future time) a certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument. The instrument Exh.P.W.3/1, relied upon by respondent, which has also been duly entered in the register of petition writer and has been exhibited as Exh.P.W.5/1 clearly indicates that the appellant has given undertaking to respondent that he has secured loan of Rs,3,20,000 from him, in presence of witnesses and he will pay on demand to the respondent the said amount when, where and to whom he desires. The said undertaking squarely falls in the definition of promissory note; therefore, the learned trial Court has rightly assumed the jurisdiction and decided the case on merits. If the promissory note and the receipt suffer from any technical defect; as lack of crossing of the adhesive stamps, signing or non-signing by marginal witnesses the same could be considered, if the defendant had been permitted to participate in the proceedings, and raised such objection.
25. As far as the authenticity, genuineness, and sanctity of Exh.P.W.3/1 is concerned, it has been proved beyond any shadow of doubt by witnesses produced by the plaintiff/respondent and nothing adverse has been brought on the record to doubt their veracity. Another important aspect of the matter is that appellant has not only signed but also affixed his thumb impression on the promissory note as well as on the receipt Exh.P.W.3/1 and Exh.P.W.3/2 respectively. The signatures of the appellant could be disputed but the finger prints have more sanctity, authenticity and reliability than the signatures. The appellant had ample opportunity to ask for comparing his thumb impressions mentioned on the documents relied upon by respondent through finger prints expert, if he was certain that the same have not been affixed by him but he did not avail that facility in spite of the fact that he withdrew his Civil Revision No,226 of 2007 from this Court on the same pretext. Presumption is that had these documents been sent to the finger prints expert the result would have been against the appellant; therefore, he purposely, intentionally and having full knowledge of the facts, avoided to expose himself to scientific scrutiny.
26. Appellant has denied the execution of promissory note and receipt by taking stance that he is landlord having 100 Kanals of landed property and respondent is a scrap dealer by profession. It was also stated by the appellant that respondent was not previously known to him. During cross- examination of respondent in the trial Court the appellant himself has negated his stance by putting certain suggestions to respondent. For example it has been suggested that one agreement to sell was reduced into writing on 14-2-2005 between appellant and respondent. The above mentioned suggestion not only proves the fact that the parties were previously known to each other but also that they had entered into another transaction on the same date vide which the appellant has agreed to sell his shops in favour of respondent, suggesting that respondent is resourceful person, capable of purchasing landed property and appellant is needy, generating his income by selling his property.
27. Keeping the above stated factual and legal aspects of the matter this Court is of firm opinion that the learned trial Court has properly appreciated evidence of the parties and gave its findings on each issue in accordance with law, which does not require any interference.
28. Therefore, the judgment/decree passed by the learned trial Court are hereby upheld and appeal filed by appellant being without substance is hereby dismissed with cost throughout.