' MIAN ALLAH NAWAZ, J.--- Mukhtar/judgment-debtor has filed this appeal under section 96 of C.P.C. Against the judgment and decree dated 23-5-1992 whereby the learned Additional District Judge, Lahore decreed the suit filed by the respondent for the recovery of amount of Rs,2,21,000 on the basis of promissory note.
2. The facts briefly stated, giving rise to this appeal are; that on 8-6-1988 respondent instituted a suit for the recovery of Rs,2,21,000 under Order XXXVII, Rules 1 and 2, C.P.C. Against the appellant on the basis of promissory note dated 20-8-1987, alleging therein that the appellant had borrowed an amount of Rs,2,21,000 from her, that he executed promissory note dated 20-8-1987 and undertook to repay the loan till 30-11-1987; that the appellant failed to repay the loan within the agreed period.
As the appellant failed to enter appearance in pursuance of service, he was proceeded against ex parte and suit of the respondent was decreed ex parte on 12-12-1988. On coming to know of the ex parte decision, the appellant moved an application for setting aside the same successfully.
Resultantly ex parte decree dated 12-12-1988 was set aside and the appellant was allowed to file written statement. He, in his written statement, contended that the promissory note Exh.P.1 and receipt Exh.P.2 were forged documents; that neither he had received the loan from the respondent nor he had executed the promissory note Exh.P.1 and Receipt Exh.P.2 . On the divergent pleading of the parties, necessary issues were framed. Oral as well as documentary evidence was led by the parties. After the close of the evidence, the appellant filed three applications; one application was moved under Order XVI, Rule 1(2) of C.P.C. Alleging therein that the signatures as well as thumb- impressions of the appellant on Exh. P.1 and Exh.P.2 were forged; that experts be summoned in the Court in order to get his specimen signatures and specimen thumb-impressions for the purpose of their comparison with the questioned signatures and questioned thumb-impression on Exh.P.1 and Exh.P.2. The second application was moved under Order XVII, rule 14 of C.P.C. For permission to produce photo copies of questioned documents Exhs.P.1 and P.2 which were in possession of common friend of the parties. The third application was lodged under Order VI, Rule 17 of the C.P.C.
For the purpose of seeking permission to amend written statement to the effect that the promissory note as well as receipt, were not signed by Akhtar Ali Monga (P.W.2). All these applications were contested and were rejected by first Court vide order dated 2-11-1991.
3. In order to prove the execution of pronote Exh. P/1 and receipt Exh.P/2 the respondent produced Amir Ahmed Sethi, P.W.1 and Akhtar Ali Monga, P.W.2. Tasneem Mirza P.W.3 as attorney of respondent. In rebuttal the appellant, contended by entering into the witness-box himself as P.W.I.
On the consideration of evidence so adduced by the parties learned trial Court held that the respondent had successfully proved the execution of Exh.P.1 and Exh.P.2 and so decreed the suit on 23-5-1992. This is, how, this first appeal has come to this Court.
4. The factual background of the appeal will not be complete without noting certain more events which happened in this Court. This appeal was admitted to hearing on 1-6-1992; it was found by this Court that the decretal amount had already been deposited in the first Court and on this basis operation of the impugned decree was stayed. On 19-9-1992, this Court ordered that the respondent might withdraw the decretal amount deposited in the first Court subject to her furnishing bank guarantee for its repayment in case the appeal succeeded. It seems that he bank guarantee was furnished and the respondent filed a Civil Miscellaneous No,532-C/92 for the purpose of vacation of the order dated 1-6-1992. This C.M. Came up for hearing on 10-4-1993 and instead of deciding it, it was ordered that it was in the fitness of things that the appeals be fixed for actual hearing. In this scenario, appeal came up for hearing on 20-4-1993. On that date, the learned counsel for the appellant assailed the vires of the order dated 2-11-1991 passed by the first Court. It was offered that if Experts were summoned in Court and were directed to obtain specimen signatures and the specimen thumb-impressions of the appellant for the purpose of their comparison with the signatures of the appellant and his thumb-impression on the questioned documents Exh.P.1 and Exh. P.2 in order to compare them with the disputed signatures and thumb- impression and submit their report, the appellant would be bound by the report of the Experts. This application was allowed on 24-4-1993 by this Court in following terms:-- "In the arguments learned counsel for the appellant challenged the legality of the interim order dated 27-11-1991 passed by the learned trial Court through which his application for getting his thumb-impression and signatures on the disputed documents Exhs. P.1 and P.2, compared by an Expert was dismissed. Learned counsel for the respondents submitted that though the application was moved by the appellant at a belated stage i,e, after closing his evidence, yet he has no objection if now the appellant's alleged thumb-impression and the signatures on Exhs. P.1 and P.2 are sent for comparison with his admitted thumb-impression and the signatures provided the appellant undertakes to be bound by the report of the Expert.
' Learned counsel for the appellant undertook that even if the report of the Expert is against the appellant, he would be bound by the same.
' The concerned Officer from the Finger Print Bureau, Punjab shall be summoned for 9-5-1993 to obtain specimen thumb-impression and signatures of the appellant in Court. On the said date learned counsel for the appellant shall cause appearance of the appellant."
5. Pursuant to the above order, Muhammad Bashir Qureshi, Inspector Police, Examiner of questioned documents, F.S.L., Lahore and Muhammad Nazir, S.I, F.P.B., Lahore came in Court and obtained the specimen signature and specimen thumb-impression of the appellant. The aforesaid experts were given the questioned documents Exh. P.1 and Exh.P.2 by the order of the Court. On 14- 6-1994 they submitted their opinion which were enclosed in two separate sealed envelops which were opened in open Court in the presence of the learned counsel for the parties and the opinions of the experts were brought on record as Marks Cl and C3' their photo-analysis as Mark 'Exh.C.2 and Exh.C.4'. According to these alongwith reports, the admitted signatures and thumb-impression of the appellant completely tallied with the disputed signatures and disputed thumb-impression.
6. The learned counsel for the appellant, in support of this appeal, contended that the appellant was bound by the opinions of experts; but notwithstanding the positive reports of the experts, it was crystal clear that the respondent had failed to prove the passing of amount in dispute to appellant.
According to the learned counsel, P.W.1, P.W. 2 and P.W.3 admitted that the amount in dispute was not given by the respondent to appellant in their presence. On these circumstances, it was contended that the respondent had miserably failed to prove that Exh.P.1 and Exh.P.2, were with consideration. On the contrary the learned counsel for the respondent submitted that the appellant himself had asked the Court to summon experts and be directed to obtain the specimen signatures and specimen thumb-impression of the appellant with direction to compare with the so-collected specimen signatures and thumb-impressions with the disputed signatures and thumb-impressions on Exh.P.1 and Exh.P.2 and submit report; that the learned counsel, at that time; undertook to abide by the report of the experts. On these premises, it was stressed that the appellant was precluded by his conduct to challenge the decision of first Court on merits.
7. After hearing the learned counsel for the parties at considerable length and on careful consideration, we find substantial force in the contentions of the learned counsel for the respondent. The contention is built upon the principle of estoppel by deed. This came up for consideration as back as Pisani v. The Attorney-General for Gibraltar and others (1874 Privy Council, The Weekly Reporter, Vol. XXII, page 900). It was held therein that "where a Court of general jurisdiction is persuaded by parties to adopt a procedure which is not contemplated by the Code of Civil Procedure and the Court decides the matter; according to that agreed procedure, the parties, against whom the decision is rendered, cannot turn round and impeach the decision on the basis of challenge to that procedure. This view wad followed in S.E. Makudam Muhammad v.
T.V. Muhammad Sheikh Abdul Qadir and another (1936 Indian Cases 611 Vol.164). Again, this point came up for consideration before the Full Bench of Patna High Court in Bhagwat Narain Singh and another v. Srinivas (AIR 1937 Pat. 113). After the survey of the applicable law and case-law it was held that :-- "On the other hand, as was pointed out by Mitter, J, in 40 C.W.N. 1402, Banga Chandra Mozumdar v.
Nand Kumar Mazumdar (1936) 40 C.W.N. 1402, where a Court has general jurisdiction, the parties to a proceeding can by agreement adopt a different procedure quite contrary to the ordinary cursus curiae and the Court is bound to give effect to such an agreement. His Lordship referred to two decisions of the Privy Council in which this principle was laid down. They are (1874) 5 P.C. 516 (Henry Peter Pisani v. Her Majesty's Attorney-General (1874) 5 P.C. 516=30 L.T. 729=22 W.R. 900 and 21 A 219=15 Beng L.R. 383, Sadasiva Pillai v. Ramalinga Pilai (1899) 15 Beng L.R. 383=2 IA 219=24 W.R. 193=3 Sar 519 (PC). In the former case it was held that: ' The departure from an ordinary procedure is permissible unless there is an attempt to give the Court jurisdiction which it does not possess or something occurs which is such a violent strain upon its procedure that it puts it entirely out of its course, so that a Court of appeal cannot properly review the decision. Such a departure has never been held to deprive either of the parties of the right of appeal' ."
' This principle was reiterated in Syed Ghulam Shah v. Jahandar Shah (PLD 1971 Karachi 708) and Messrs Haji Hasham Haji Ahmed & Bros. v. Messrs Trading Corporation of Pakistan Ltd., Karachi (PLD 1977 Karachi 480).
8. Guided by this principle, it is clear to us that it was the appellant who had asked the Court to summon the handwriting and finger experts for the purpose of obtaining specimen signatures and thumb-impressions of the appellant in Court for their comparison with his disputed signatures and disputed thumb impression on the promissory note Exh. P.1 and receipt Exh.P.2. It was he, who undertook, that he would abide by the report of the Experts. On his categorical offer the Court summoned the experts who obtained his signatures and thumb-impression in Court, compared them with his disputed signatures and thumb-impression on questioned documents and then submitted reports wherein it was opined that the signatures and the thumb-impression of the appellant existing on questioned documents tallied with the specimen signatures and specimen thumb-impression of the appellant. The learned counsel for the respondent correctly pointed out that he was no longer entitled to challenge the impugned decision of first Court on merit. We are of the considered view that the appellant was bound by the opinions of experts and was estopped to call in question the decision of the first Court, now, on merit. We, accordingly uphold it.
9. Even otherwise, this appeal is without any merits. The case of the respondent rests upon Exh. P.1 and Exh. P.2. The first document is promissory note by which the appellant undertook to pay the disputed amount to respondent till 30-11-1987. Exh. P.2 is a receipt by which the appellant had acknowledged, to have received the disputed amount from- the respondent. These documents were proved by Amir Ahmed Sethi (P.W.1), Akhtar Ali Monga (P.W.2) and Tasneem Mirza (P.W.3), who appeared as attorney of his mother. P.Ws. 1 and 2 stated positively that Exh. P.1 and Ex.P.2 were executed in their presence; that the appellant had admitted to have received amount in dispute from the respondent and put his signatures and thumb-impression on questioned documents in their presence. These witnesses were subjected to lengthy cross-examination but nothing was extracted to demolish their credibility and f neutrality. The appellant contended by going to the witness-box himself alone. His testimony is not sufficient in quality and quantity to displace/rebut the evidence of the respondent. It does not exude confidence. Furthermore, it is settled that the promissory note carries a presumption following from section 118 of the Negotiable Instruments Act, that it is with consideration. The relevant portion of section 118 ibid is as follows:-- "118. Until the contrary is proved, the following presumption shall be made:--
(a) Of consideration; that every negotiable instrument was made or drawn for consideration and that every such instrument, when it has been accepted, endorsed, 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 to acceptance; that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;
(d) .."
' The effect of section 118 ibid was examined by the Supreme Court in Muhammad Boota v. Faiz Ahmed (1979 SCMR 465) in which while examining the question of presumption it was laid down that:-- "On going through the copies of the pleadings of the parties and the evidence of the parties produced on this record, we have no hesitation in sharing this view with the learned Judge of the High Court. In fact as significantly pointed by the lower appellate Court Rashid Ahmed (D . W . 3) in his cross-examination had admitted the execution of the promissory note by the defendant in favour of the plaintiff through the deed-writer. The thumb-impression affixed on the promissory note in dispute was not seriously denied by the defendant and was otherwise sufficiently proved by the evidence of the plaintiff and his witnesses. Indeed the handwritten expert (P.W. 5) when produced by the plaintiff in support of his case was not at all cross-examined on the point. There could be hardly any doubt as to the execution of the promissory note by the defendant in favour of the plaintiff. Therefore, under section 119 of the Negotiable Instruments Act, it had devolved on the defendant to prove that the promissory note thus executed by him was without consideration.
Apart from the cogent and consistent evidence led by the plaintiff to prove the payment of Rs,10,000 in cash by the plaintiff to the defendant as loan, the latter has miserably failed to discharge the onus of this issue resting on him."
10. Applying this principle to the facts and circumstances of this case, it is quite clear that the appellant failed to perform his part of burden to c displace/rebut the presumption that the promissory note Exh. P.1 was with consideration and he had received the disputed amount from the respondent. The testimony of the appellant has not stood the tet of scrutiny during the first Court as well as this Court. We are, therefore, of considered view that the finding rendered by the Courts below on the question of execution of Exh. P.1 and Exh. P.2 does not suffer from any flaw. We, accordingly, affirm it.
11. As a result of the above discussion, this appeal is found to be wholly devoid of any merit and is, accordingly, dismissed. The appellant shall bear the cost of proceeding throughout.