Mian Shahid Iqbal, J.--The instant Regular First Appeal has arisen out of judgment and decree dated 14.04.2005 passed by learned Addl. Sessions Judge Jhang, who by virtue of the said judgment had dismissed the suit of the present appellant.
2. Brief facts as alleged are that appellant on 28.10.2002 filed a suit under Order XXXVII, Rules 1 and 2 CPC for recovery of Rs,503,000/- on the basis of a pronote dated 21.02.2002 alleged to have been executed by the respondent.
3. After notice to the said respondent he filed written statement on 16.12.2002. thereafter as many as six issues were framed and the parties were asked to produce evidence.
4. The plaintiff appeared as P.W-1 and produced Attique Ahmad who was the writer of the pronote as P.W-2, Masood Ahmad, who identified the signatures of present respondent as P.W-3 and Mumtaz Hussain one of the witness of the said receipt appeared as P.W4. On the reverse respondent produced Allah Ditta, witness of the said receipt Ex.P.2 as D.W-1, Hasnaat Ahmad as D.W-2 and himself appeared as D.W-3.
5. The learned trial Court after screening the evidence of the parties dismissed the suit vide judgment and decree dated 14.04.2005, thereby holding that since no consideration amount was passed on to the present respondent, as such Ex.P-1 and Ex.P-2 are without consideration, hence the suit was dismissed.
6. Learned counsel for appellant submits that the learned trial Court has committed illegality by not asking the present respondent to obtain leave as provided under Order XXXVII, Rule 3, CPC and straightaway written statement was filed. Further submits that signatures on demand promissory note are not denied, hence it was incumbent upon the defendant/respondent to prove otherwise.
He further submits that in presence of illegality committed by the Court by not asking for leave, the evidence placed on record by respondent cannot be read into. The story put forth by the respondent was not proved through evidence.
7. On the reverse learned counsel for respondent submits that the objection regarding filing of leave and subsequently its granting was never taken by the trial Court, hence cannot be taken before the first appellate Court in the circumstances. He referred to 2004 YLR 1047. Learned counsel for respondent further submits that since the objection was not raised by the appellant before the learned trial Court, as such evidence of the respondent cannot be ignored. It is also contended by the learned counsel that amount in question, on the basis of which, alleged demand promissory note was said to have been executed was not proved through evidence, hence the judgment and decree passed by the learned trial Court was fully inconsonance with the evidence on record. Even otherwise, learned counsel submits that by not applying for leave no prejudice had caused to the appellant, the onus was on him to prove regarding the payment in question when the execution of demand promissory note was contested on the ground that the same has been procured through coercion and pressure of the local police.
8. We have attended to the arguments of learned counsel for parties and have gone through the evidence and record with their assistance.
9. The first question which arises in present case is that onus was on the appellant to prove execution of the demand promissory note and on the basis of said document passing of the consideration. The petitioner has only produced one witness i,e, P.W-4 and could not produce any other witness of the said document. According to Articles 17 and 79 of the Qanoon-e-Shahadat Order, 1984, where financial transaction is involved, same can only be proved through attestation of two witnesses which in present case the appellant could not make out.
10.Even otherwise the evidence placed on record is scanty on the point of time of arrival of witnesses at the place of execution of pronote in question. D.W-1 who appeared on behalf of respondent has categorically stated in his examination-in-chief that though the document in question was signed by the present respondent but payment was not made. In the presence of this evidence the judgment and decree passed by the trial Court cannot be reversed.
11.The contention of the learned counsel for the appellant that since no PLA was filed, as such written statement could not be treated as PLA, hence evidence brought on record by the respondent was wrongly considered by the learned trial Court, cannot be considered in view of judgment laid down in 2004 YLR 1047, which holds as under at page 1049:-- "Under law, Courts have power to treat an application as a written statement and a written statement as an application and at the same time, it is settled that wrong drafting or wrong quotation of law by the party or its counsel does not debar a Court from taking into consideration gist of the assertions made therein. Since no written statement could have been filed without grant of leave, in terms of Order XXXVII Rule 2(3), C.P.C., it is unfair to treat this application as a written statement and to throw it out, simply for the reason that it was not properly drafted, by some body.
I am constrained to consider this petition as an application for leave to defend the suit"
The only conclusion to be drawn on the basis of the said written statement is that the same may be considered as PIA as well as a written statement, therefore, the judgment and decree passed while considering the same was fully justified.
12.There is another aspect of the judgment passed by learned Judge of this Court in PLD 2007 Lahore 114, in which it has been held at page 120 that:- "Besides the above, according to the provisions of Section 2(5)(b) of the Stamp Act, 1899, if an instrument, which may otherwise be a promissory note, but if attested, by the witnesses, it attains the legal status of a bond and no more remains a negotiable instrument; thus one of the important tests to determine whether an instrument is bond or a promissory note, is the attestation of the witnesses."
13.Bare reading of present demand promissory note Ex.P-1 if looked into, this document has been signed by one Masood Ahmad who appeared as P.W-3 and claims to be identifier of the signatures of the said document The signatures of Masood Ahmad in the given circumstances would make the said pronote to be striped out of the definition of negotiable instrument, converting the said document into a bond. Thus the said suit would become defective and as such could not be filed under Order XXXVII Rule 2, CPC.
14.In the light of discussion made above, we feel that the judgment and decree passed by learned trial Court was fully in consonance with law, as such this appeal fails and is dismissed with no orders as to costs.