' ABID AZIZ SHEIKH, J.---This appeal is filed against the judgment and decree dated 17-1-2013 passed by the learned Additional District Judge Faisalabad, whereby the suit of the respondent/defendant under Order XXXVII, Rule 2, C.P.C. For recovery of Rs,29,50,000 was decreed with costs against the appellant/defendant.
2. Briefly, the facts of this case, are that the respondent/plaintiff filed a suit for recovery of Rs,29,50,000 on the basis of promissory note dated 16-11-2009. According to the averments of the plaint, the appellant/defendant was close relative of the respondent/plaintiff. He borrowed Rs,29.50,000 from the respondent/plaintiff in presence of the witnesses for the purchase of a Bus and executed a promissory note along with receipt in favour of the respondent/plaintiff. According to plaint, the appellant/defendant had to pay back borrowed amount within a period of 5 months but despite demand he failed to pay the amount, hence the suit under Order XXXVII, Rule 2, C.P.C.
Was filed. The appellant/defendant filed an application for leave to appear and defend the suit, which was allowed by the learned trial court and after framing of issues and recording of evidence the suit was decreed through judgment and decree dated 17-1-2013 which is assailed in this appeal.
3. At the very outset the learned counsel for the respondent raised a preliminary objection that appeal is time barred. It is argued that the judgment and decree was passed on 17-1-2013, the appellant applied for the certified copies of the same on 19-1-2013 which was prepared on 23-1- 2013 and thereafter the appeal was filed within 90 days on 20-4-2013, however, the office raised certain objections on the appeal which were finally removed on 2-5-2013 by which date, the appeal became time barred. Contends that where the appeal is returned by the office for removing the office objections within specified time and the same have not been removed within the given time and meanwhile prescribed period for filing appeal lapses, then such delay will render the appeal time barred unless delay is explained through an application for condonation of delay under section 5 of the Limitation Act and delay is condoned by the Court. In this regard reliance is placed on the case reported as Nabbed Ahead v. Asif Diaz and 3 others (PLED 1996 Lahore 702).
4. Conversely, the learned counsel for. The appellant argued that the appeal is not barred by time as the same was originally filed within time on 20-4-2013. Contends that the date relevant for determining whether the appeal is within time or not will be the date when appeal is originally filed and mere delay in removing the office objection(s) will not render the appeal time barred.
5. At the first instance we would like to decide the preliminary objection raised by the respondent on the question of limitation. To determine the controversy we also sought a report from the office.
It is admitted position between the parties that when the appeal was originally filed on 20-4-2013 it was within time. However, as per office report on 20-4-2013 the office vide Diary No, 38754 raised objections at Serial Nos. 8, 9 10, 11, 18 and 23 on the objection sheet, to be removed within 3 days.
The appellant counsel received back the appeal (under objection) and the same was re-filed on 25-4-2013 without removing the office objections vide Diary No, 40684 as an ordinary case. The office repeated the objections on the appeal, which was again received back by the appellant on 29-4-2013 and the same was re-filed after finally removing the objections vide Diary No, 4265 dated 2-5-2013. Admittedly on 2-5-2013, the time prescribed for filing the appeal was elapsed.
6. The legal question involved here is that which of the two dates will be treated as date of filing of the appeal for purpose of limitation. Whether it will be 20-4-2013, when appeal was originally filed or it will be the date when office objection was finally removed on 2-5-2013.
7. In this context, it will be expedient to peruse the relevant Rules and Orders of the Lahore High Court, Lahore relating to office objection(s) and re-filing/filing of appeals. The said Rules are framed by the High Courts under Article 202 of the Constitution of Islamic Republic of Pakistan 1973.
The said Article provides:-- "202. Rules of Procedure. Subject to the Constitution and law, a High Court may make rules regulating the practice and procedure of the Court or of any Court subordinate to it"
8. The relevant Rules for the purposes of the instant appeal are Rules 9 and 9-A, Part-A of Chapter- 1 of the Rules and Orders of the Lahore High Court, (Revised Edition, 2005). For ready reference the said Rules states as under: "9-(Q. The Deputy Registrar (Judicial) is authorized to return organdie of any suit, appeal or petition or application etc.
(a) if it is not maintainable under any law or
(b) if it is not properly constituted: or
(c) if it contains scandalous or objectionable language or material: or
(d) if it is not drawn up in conformity with the foregoing directions: or
(e) for amendment making up of the deficiency or for filing requisite documents within the time to be specified in the Objection Memorandum Appendix 1(a), 1 (b) & 1 (c):
(ii) The order of the Deputy Registrar (Judicial) returning the memorandum of any suit appeal petition or application may be challenged before the Chief Justice or Judge nominated by the Chief Justice on administrative side whose decision shall be final and shall not be assailed in any other proceeding before the High Court.
"9-A. A List of petitions, appeals etc. Ordered to be returned shall be notified on the Notice Board and petitions, appeals, etc. Not received back within seven days of the publication of the list shall be placed before a Judge of the High Court for order on a date to be notified by including such petition in a motion cause list. It is made clear that any delay in placing such petition before the Court or issuing the list shall not furnish any justification for non-receipt of the returned petition in time and non-compliance of the objection taken within time specified by Deputy Registrar (Judicial)".
8(sic). According to Rule 9, Deputy Registrar (Judicial) can raise objections mentioned herein.
Once the objections are raised the appeals, etc. Are returned for making up the deficiency within the time to be specified. The relevant part of objection Sheet states:- "Returned with the objections at No, above to be resubmitted after the removal of these objections within days" (emphasis supplied)
9. From Rule 9 ibid it is clear that the Deputy Registrar (Judicial) of this Court, is only authorized to return the appeal for making up any deficiency or filing requisite document within time to be specified in the objection memorandum, however the rule does not empower the Deputy Registrar (Judicial) of this Court, to entertain the petition or in other words to dismiss the petition having not been validly instituted. In case the deficiency is not corrected by the appellant within time given by the Deputy Registrar (Judicial) of this Court, the situation is fully covered by rule 9-A (supra) which postulates that if within time provided such petition is not refilled/returned a notice shall be affixed upon the Notice Board meant for the purpose specified and if within seven days the deficiency is still not made good, the matter shall be placed before a Judge of this Court for an order on a date to be notified by fixing such a petition in the motion cause list. It is thus clear that as per rules it is for the Court to decide as to what should be done with such matter(s).
10. The interpretation of Rules 9 and 9-A ibid and the similar legal question involved in this appeal, came up before the august Supreme Court of Pakistan in recent case reported as Farman Ali v.
Muhammad Ishaq and others (PLD 2013 SC 392). In the said case the civil revision was filed before this Court on 18-4-1993 which was filed within time, however, the D.R.R. (Civil) returned the civil revision after raising objections at Serial Nos.3, 5, 6, 15, 16, 21 and 23 and petitioner was required to remove the objections within limitation provided for civil revision. The petitioner could not remove the said office objections within time provided. The petitioner rather availed more than one chance to remove the objections and finally when the objections were removed, 154 days were already elapsed from the date of the decision of the impugned order. On the date when objection was removed, the petition became time barred, therefore, the office required the petitioner to file an application for condonation of delay under section 5 of the Limitation Act, which when came up before this Court, the same was dismissed being not maintainable and the civil revision met the same fate. The honourable Supreme Court while interpreting the Rules 9 and 9-A of the High Court Rules and Orders ibid, held that a revision petition which was originally filed within time prescribed by law but was deficient in some respect, and such deficiencies were not supplied and made up in the given time, cannot be termed to be barred by time. In this behalf the conclusion drawn by the august Supreme Court of Pakistan in the aforesaid judgment is reproduced as under:-- "It may be emphatically held that such a revision petition, which was filed within time prescribed by law, but was deficient in some respect, and such deficiencies were not supplied and made up in the given time, cannot be termed to be barred by time. It may be pertinent to mention here that where the revision petition is beyond limitation, the DR can point out to the petitioner this aspect and caution him, but has to fix the matter before the Court for its decision on the question of limitation leaving it for the petitioner to seek the indulgence of the Court on the question of limitation or otherwise. Be that as it may, we may like to refer here a verdict of this Court which has nexus to the matter i,e, Mst. Sabiran Bibi v. Ahmad Khan and another (2000 SCMR 847) holding that:- "Thus, in view of above discussions we are inclined to hold that once a suit, appeal or revision has been presented before the authorized officer of the Court within the prescribed period of limitation, it cannot be treated barred by time for the reason that the office has noted defects in the proceedings which have not been removed by the concerned party or his Advocate, and in such-like situation the Presiding Officer of the Court at the best can consider the maintainability of proceedings in view of the provisions of Order VII, Rule II or identical provisions available in the Code of Civil Procedure or the law under which the proceedings were instituted. It is also important to note that parties/Advocates are also not absolved from their duty to remove the office objections within the stipulated period prescribed by the concerned authorized officer subject to the condition that specific notice has been served upon the party or Advocate to do the needful. Even if after notice the defect is not removed the case shall be listed for non-prosecution before the Presiding Officer who may in his discretion allow time to comply with objections of office."
' The upshot of the above discussion is, that where a revision petition has been filed within time, but the office objection(s) points out certain deficiencies in respect of the institution, for all intents and purposes, it shall be demeed to have been instituted within the period of limitation and where the petitioner does not remove the office objections and make up the deficiencies in the time provided by the office, the matter shall be placed before the Court on the judicial side and the Court shall decide about the fate of the petition in accordance with law, and as per some of the guidelines provided in the preceding part of this judgment. In the instant case, an error has been committed at both the levels, i,e, the office, where an impression was caused that the revision petition of the appellant is rendered time barred on account of the lapse of the period due to the failure on part of the appellant to make up the deficiencies in the time specified by the office and requiring the petitioner to file the application for the condonation of delay, and also at the stage of hearing when the learned High Court has not adverted to the fact of the case, the relevant law, quoted above, but has simply dismissed the petition as being time barred due to the non- application of section 5 of the Limitation Act, 1908 to the revision petitions. Therefore, the impugned judgment cannot sustain which is hereby set aside and the matter is remanded to the learned High Court for the decision afresh on merits."
11. In view of above discussion, we are of the opinion, that once the appeal is originally filed within prescribed limitation period but was returned due to office objections which could not be removed within given time and when the office objections finally removed the prescribed period of limitation for filing appeal elapsed, will not render the appeal barred by time. In the present case, as originally the appeal was filed on 20-4-2013, which was within the prescribed period of limitation of 90 days and only because office objection was removed on 2-5-2013, will not make the appeal barred by time, therefore, preliminary objection raised by the learned counsel for the respondent is over ruled.
12. On merits the learned counsel for the appellant argued that the entire case hinges upon the two documents i,e, Promissory Note dated 16-11-2009 and the Receipt dated 16-11-2009 produced as Exh.P.1 and Exh.P.2. Submits that signatures of the appellant/defendant was specifically denied on the said documents, therefore, these documents cannot be treated as Negotiable Instruments.
Further argued that the stamps on Promissory Note were not cancelled and thumb impression is on the Receipt and not Promissory Note, therefore, it could not be tendered in evidence. Adds . That once the signatures and thumb impressions on document were denied, the learned trial court was bound to refer the matter to the Hand Writing Expert under Article 78 of the Qanun-e-Shahadat, 1984 and could not compare the signatures and thumb impressions himself. Submits that once the signatures of execution of documents are denied, no presumption was available to these documents under section 118 of the Negotiable Instruments Act 1881 and the respondent/plaintiff was bound to prove its execution. Reliance is placed on the cases reported as Mst. Shahida Adeeb and another v. Nauman Ejaz and another (2007 CLC 1160), Mst. Riffat Jehan and another v. Habib Bank Limited and 10 others (2005 CLD 941), Ch. Munir Hussain v. Mst. Wazeeran Mai alias Mst. Wazir Mai (PLD 2005 Supreme Court 658) and Malik Muhammad Akram v. Khuda Bakhsh (2000 CLC 759).
13. Conversely, the learned counsel for the respondent on merits argued that the promissory note and the receipt was duly proved through the oral as well as documentary evidence produced by the respondent/plaintiff. Further submits that the appellant has not raised any objection regarding the non-cancellation of stamp as well as the thumb impression being not on the Promissory Note.
Adds that new plea cannot be raised in appeal, which was not raised before the learned trial court.
The learned counsel further contends that under Article 84 of the Qanun-e-Shahadat, 1984, the Court had ample power to compare the thumb impressions and signatures of the appellant/defendant with the signature/thumb impressions on the admitted documents, which exercise was lawfully done, therefore, the impugned order is legal and valid.
14. We have given our anxious consideration to the arguments of the learned counsel for the parties and have also perused the record.
15. Main argument of the learned counsel for the appellant is that execution of Promissory Note and Receipt Exhs.P.1 and P.2 could not be proved and the said documents are also not admissible being stamps not duly cancelled. The perusal of the oral as well as documentary evidence shows that the respondent/plaintiff while appearing as P.W.1 reiterated his stance raised in the plaint and also produced original Promissory Note dated 16-11-2009 as Exh.P.1 along with receipt dated 16-11-2009 Exh.P.2. The marginal witnesses of Exhs.P.1 and 2 namely Muhammad Ijaz and Nafees Ahmad also appeared as P.W.2 and P.W.3 and supported the stance of the respondent/plaintiff to the effect that the appellant/defendant in their presence had borrowed a sum of Rs,29,50,000 from the respondent/ plaintiff and had executed Promissory Note Exh.P.1 and receipt Exh.P.2 and also put his thumb impressions along with signatures on the said documents. On the other hand, although the appellant/respondent denied his signatures on these documents but surprisingly no application was moved before the learned trial Court for referring the matter to the Hand Writing Expert. The learned trial court while exercising powers under Article 84 of the Qanun-e-Shahadat Order, 1984 itself compared the thumb impressions of the appellant/respondent with the thumb impressions on admitted documents and found that all the features of his thumb impressions in the shape of grooves and arches are very much the same as on the admitted documents. Similarly. The signatures of the appellant/respondent were also compared with the signatures on the admitted documents by the learned trial Court and found to be the same of the appellant/defendant. The arguments of the learned counsel for the appellant that the learned trial Court had no jurisdiction to compare the signatures itself and these should have been referred to the Hand Writing Expert is contrary to the provisions of Article 84 of the Qanun-e-Shahadat Order, 1984, according to which in certain eventuality the Court enjoys preliminary powers to compare the signatures itself along with the other relevant material to resolve the controversy. We have noted that the learned trial court carefully went through this process and compared the documents i,e, Exh.P.1 and Exh.P.2 to the documents admittedly executed by the appellant and found them to be in complete similarity and tallied with each other. The matter was not referred to the Hand Writing Expert does not render the impugned judgment with the legally infirm as to warrant interference by this Court especially where the appellant/defendant has not moved any application for referring the matter to the Hand Writing Expert. In this regard reliance is placed on the cases reported as Messrs Waqas Enterprises and others v. Allied Bank of Pakistan and 2 others (1999 SCM R 85) Ghulam Dasool and others v.
Sardar ul Hassan and another (1997 SCM R 976).
16. The next argument of the learned counsel for the appellant is that because the stamps on the promissory note were not duly cancelled therefore, it was not admissible in evidence. Admittedly no such objection was taken by the appellant/defendant at the time when pro note was being tendered into evidence, therefore, this plea cannot be raised at this stage. In this regard reliance is placed on the Division Bench Judgment of this Court reported as Abid Hussain v. Abdul Abbas (2007 M LD 1) wherein similar situation it was held as under:-- "As regards the objection of non-cancellation of the adhesive stamps is concerned, suffice it to say, that the appellant has not taken this objection at the time when the pro note was tendered into evidence, therefore, under the rules such plea cannot be raised at this stage."
17. The objection that thumb impressions and signatures are on the Receipt and not on the Promissory Note is also contrary to record. There are two signatures and two thumb impressions, available on the document and perusal of it shows that one is regarding Promissory Note and the other is on the Receipt. In any case this objection was not raised at the trial Court level and it is settled law that if a plea not raised at the trial stage, it cannot be raised for the first time in appeal.
Reliance is placed on the case reported as Hyder Ali Bhimji v. VIth Additional District Judge Karachi (South) and another (2012 SCM R 254).
18. The appellant has moved an application i,e, C.M.1 of 2013 under Order XLI, Rule 27 for production of F.I.R. No,677 of 2010 and F.I.R. No, 206 of 2011 as additional evidence in this appeal. We have noted that the aforesaid F.I.Rs, are not relevant to the issue in hand which relates to the execution of the Promissory Note and the receipt, therefore, we see no justification to allow the additional evidence at this stage. The aforesaid C.M. Is dismissed being not maintainable.
19. In view of above, the findings recorded by the learned trial Court are based on correct appreciation of evidence on the record, therefore, the same does not call for any interference.
20. For the reasons stated above, this appeal is dismissed. The parties will bear their own costs.
Requisitioned record be remitted back to the concerned Court forthwith.