S.M. ATTIQUE SHAH, J.---This is an appeal, filed by the appellant against the judgment and decree dated 28.11.2017, passed by learned Additional District Judge-II, D.I. Khan, whereby the suit of respondent No.1 was decreed.
2. The brief facts of the case, out of which the instant appeal arises, are that the plaintif f/respondent No.1 filed a suit under Order XXXVII, C.P.C. against the appellant/defendant No.1 and pro forma respondents Nos.2 and 3 for recovery of Rs.12,00,000/- on the basis of promissory note dated 21.3.201 1 along with profit at bank rate. It is averred in the plaint that the parties were having friendly relations. On 21.3.201 1 the appellant/defendant No.1 and pro forma respondents Nos.2 and 3 came to plaintif f/respondent No.1. and demanded Rs.4,00,000/- each. Due to cordial relations, the respondent No.1 handed over Rs.12,00,000/- (Rs.4,00,000/- to each defendant) in the presence of witnesses and in this respect they scribed promissory notes in his favour . When the plaintif f/respondent No.1 asked the defendants for the return of said amount, at first they used delaying tactics and finally refused, hence, the suit.
3. At first the defendants did not appear before the learned trial Court and they were proceeded against ex parte.
The learned Additional District Judge-II, D.I. Khan recorded ex parte evidence of respondent No.1 and decreed the suit vide judgment dated 20.9.201 1. Thereafter the appellant filed an application under Section 12(2) for setting aside ex parte decree which was accepted vide order dated 16.5.2017 and the ex parte decree dated 20.9.201 1 was set aside to the extent of the appellant and the suit was restored while the same was intact to the extent of pro forma respondents Nos.2 and 3. On 23.9.2017, the appellant was allowed to appear and defend the suit and thereafter he filed his written statement. The learned trial Court/Additional District Judge-II, D.I. Khan framed issues from divergent pleadings of the parties, recorded respective evidence of the parties and after hearing arguments decreed the suit to the extent of Rs.4,00,000/- against the appellant with simple interest of 5%, hence, this appeal
4. Arguments heard and record perused.
5. In support of his case, the plaintif f/respondent No.1 produced four witnesses i.e. he himself as PW-1, one Muhammad Jamshed as PW-2, Muhammad Raj Mir as PW-3 and Manzoor Hussain Shah Petition Writer as PW-4.
Conversely , the appellant/defendant No.1 recorded his own statement as DW-1 and produced one Muhammad Ramzan as DW -2 and Muhammad Ameer as DW -3.
6. It is evident from the contents of the written statement that the appellant did not at all admit the execution of the promissory note and his signatures on the same. The plaintif f/respondent No.1 could not produce cogent evidence to prove that in fact the promissory note was legally executed by the appellant and that the consideration mentioned in the promissory note was passed on to the appellant. The plaintif f/respondent No.1, although alleged in the plaint as well as in his statement that the appellant received a sum of Rs.4,00,000/- from him in the presence of witnesses Muhammad Yousaf and Shah Behram, who are also marginal witnesses of the promissory note and receipt, but he failed to produce them in the learned trial Court despite the fact that they were the most crucial witnesses. He stated in his cross-examina tion that he is having no proof regarding the death of witness Muhammad Yousaf, similarly , he also stated that he is having no proof regarding proceeding abroad of second witness Shah Behram. Such failure, in the absence of any plausible explanation, would also give rise to an adverse presumption against the plaintif f/respondent No.1 under Article 129(g) of the Qanun-e-Shahadat Order . The record reveals that the plaintif f/respondent No.1 failed to prove that whether the promissory note was legally and validly executed by the appellant and that in fact a sum of Rs.4,00,000/- was given to the appellant in the presence of the witnesses.
7. There is no denying the fact that a promissory note being a document involving financial obligation has to be proved in accordance with the requirements of Article 79 of the Qanun-e-Shahadat Order , 1984. What are its requirements for proving a document of this type can well be known by reading it which runs as under:- "If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provision of the Registration Act, 1908, (XVI of 1908) unless its execution by the person by whom it purports to have been executed is specifically denied."
8. This Article in clear and unambiguous words provides that a document required to be attested shall not be used as evidence unless two attesting witnesses at least have been called for the purpo se of proving its execution. The words "shall not be used as evidence" unmistakably show A that such document shall be proved in such and no other manner . The words "two attesting witnesses at least" further show that calling two attesting witnesses for the purpose of proving its execution is a bare I minimum. Nothing short of two attesting witnesses if alive and capable of giving evidence can even be imagined for proving its execution. Construing the requirement of the Article as being procedural rather than substantive and equating the testimony of a Scribe with that of an attesting witness would not only defeat the letter and spirit of the Article but reduce the whole exercise of re-enacting it to a farce.
Thus, this Article being mandatory has to be construed and complied with as such.
9. Another reason for not equating the testimony of a Scribe with that of an attesting witness is that both of them signed the document in different capacity and with a different state of mind. They, as such, do not meet the requirements of Article 79 of the Qanun-e-Shahadat Order . Scribe, however , could be examined by the party for corroboration of the evidence of the attesting witnesses but not as a substitute therefor . This aspect was highlighted in the case of "Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs" PLD 2011 SC 241 in the paragraph which reads as under:- "To the same effect are the judgments reported as Oasim Ali v. Khadim Hussain through legal representatives and others (PLD 2005 Lahore 654) and Shamu Patter v. Abdul Nadir Rowthan and others (1912 (16) IC 250).
Therefore, in my considered view a scribe of a document can only be a competen t witness in terms of Articles 17 and 79 of the Qanun-e-Shahadat Order , 1984 if he has fixed his signature as an attesting witness of the document and not otherwise; his signing the document in the capacity of a writer does not fulfill and meet the mandatory requirement of attestation by him separately , however , he may be examined by the concerned party for the corroboration of the evidence of the marginal witnesses, or in the eventuality those are conceived by Article 79 itself not as a substitute."
10. Special summary procedure provided in Order XXXVII, C.P.C. envisages a special mechanism for trial or the suits based upon negotiable instruments. However , it is settled law that once leave to appear and defend the suit is granted, the same is converted into a regular civil suit and is to be tried accordingly .
11. The learned trial Court while granting leave, undoubtedly was conscious about the principles governing the grant or refusal of leave in such-like suits and, therefore, he did not grant the said leave unconditionally but tagged a condition to file surety bond to the tune of Rs.600,000/-. The learned trial Court took adequate pre-cautions that in case the suit of the plaintif f/respondent No.1 is decreed in that case there should not be any problem for him in the execution of the decree, therefore, he saddled the appellant with a liability to furnish the surety bond. Needless to mention that the learned trial Court granted a period of 15 days to the appellant for the furnishing of the surety which order was duly complied with by the appellant. This is one of the circumsta nces to show the bona fides on the part of the appellant. Admittedly , the leave granting order dated 23.9.2017 was not challenged by the appellant before any higher forum, thus, the same has attained finality . Although, under the law, the interlocutory orders merge in the final order and same can be assailed at the time of challenging the final order but since this is a summary suit, therefore, the matter ended when the leave application was allowed as thereafter the suit was to be proceeded with under the same procedure which has been prescribed while proceedings when the suit instituted in .the ordinary manner as per the provisions of Order XXXVII, C.P.C. Learned counsel for the appellant has placed reliance on a reported case "Muhammad Amin v. Ghulam Muhammad " PLD 1993 Lahore 569, and is apt to the circumstances of the case and fully applicable to the proposition raised in the present appeal.
12. In view of the above findings and conclusions, the learned trial Court has comm itted illegality while passing the impugned judgment dated 28.11.2017, therefore, the same is set aside and the suit of the plaintif f/respondent No.1 is dismissed.