This first appeal is directed against the judgment and decree dated 2-7-1999 passed by the learned Additional District Judge, Chaishtian, whereby the suit of the respondent for recovery of Rs.1,00,000 based on a promissory note was decreed against the appellant.
2. Brief facts necessary for the disposal of the instant appeal are that the respondent instituted a suit under Order 37, rules 1 and 2, C.P.C. For recovery of a sum of Rs.1,00,000 (one lac) on the basis of a pronote alleged to have been executed by the appellant. The appellant was granted leave to defend the suit. He filed written statement and refuted the averments made in the plaint.
3. The learned Additional District Judge, Chishtian keeping in view the pleadings of the parties framed the following issues:--
(1) Whether the plaint does not disclose any cause of action and the plaintiff has no locus standi to file the suit? OPD
(2) Whether the plaintiff is estopped by his act and conduct to file this suit? OPD
(3) Whether this suit has been filed without any just and proper cause and just to vex down and as such he is entitled to special costs under section 35-A, C.P.C.? OPD.
(4) Whether the plaintiff made a loan of Rs.1,00,000 in favour of the defendant who executed a promissory note and receipt thereof?
(5) Relief.
4. The parties led evidence in support of their respective contentions and the learned Trial Court after going through the same decreed the suit with costs vide its judgment dated 2-7-1999, now impugned herein.
5. The learned counsel for the appellant argues that the learned trial Court has fallen into legal error by not appreciating legal proposition to the effect that despite the proof of execution of document it was incumbent upon the plaintiff/respondent to prove the consideration and in the instant case, no such evidence was led. He relied upon PLD 1993 Lah. 569 titled 'Muhammad Ameen v. Ghulam Muhammad'. It is next contended that the promissory note was also signed by two witnesses, thus, it would be deemed to be a bond instead of a promissory note. He referred to section 2(5) 35 of Stamp Act (1899) and section 4 of the Negotiable Instruments Act (1881). In this context he relied upon AIR 1957 Rajasthan 387 (Bheru Lal v. Ghisulal). Thus the suit under Order 37, rules 1 and 2, C.P.C. Was not maintainable and it should have been a simple money suit to be filed before the Civil Judge having the pecuniary jurisdiction. Adds that filing of the suit by the respondent is based on mala fides as there was a dispute between the brother of the appellant and the respondent and the appellant stood as a surety for his brother and issued a cheque for Rs.1,00,000 (Exh.P3) and issuance of his cheque by the appellant in favour of the respondent was given undue weight by the learned trial Court in decreeing the suit. In the nutshall his arguments are that no case at all was made out by the respondent which could justify a decree in his favour.
In support of his submissions, he relied upon 1980 CLC 1185 (Nazim v. Messrs Habib Bank Limited, Karachi and another).
6. On the other hand, the learned counsel for the respondent contends that the judgment and decree in question have been passed strictly in accordance with law and facts. The execution of pronote Exh.-1 has been proved beyond all doubts by producing scribe and two marginal witnesses; that consideration is also proved which is also supported by the fact that the appellant admittedly issued a cheque of the same value (Rs.1,00,000) in favour of the respondent which was later on dishonoured and that the appellant has himself admitted the receipt of Rs.1,00,000 as a loan from the respondent. "
7. I have considered the arguments of the learned counsel for the parties, perused the record and gone through the judgment cited at the Bar.
8. Though the point of non-maintainability of the suit on the premises that Exh. P1 is a bond and not a Promissory Note and no suit on the basis thereupon under Order 37, Rules 1 and 2, C.P.C. Could be filed was not taken earlier either in the application for leave to defend the suit or in the written statement and during the arguments before the learned Trial Court P and also not in the grounds of instant appeal. However, in order to appreciate such a plea I have very carefully gone through the AIR 1937 Raj. 387 in the light of the relevant provisions of the Stamp Act and the Negotiable Instruments Act, I am convinced that such a ground is not available to the appellant as the document Exh-P1 is by all means a Promissory Note and the suit was rightly maintainable. The judgment cited by the learned counsel is not at all applicable to the instant case. Signing of the witnesses on Exh.-P1 if read with the contents thereof does not change its nature from a Promissory, Note to a Bond. The facts of the cited case are quite distinguishable from the present one. In that case the instrument was attested by a witness but the same was not payable to order or a bearer, thus, that instrument was treated as a bond. Here I may refer to AIR 1939 Oudh 107 (Pudai Sheikh v.
Mst. Bilasi) that in the circumstances identical to e present case, the document was held to be a Promissory Note in spite of I being attested-by witnesses. In the instant case, Exh.Pl contains a clear promise to pay the money on demand and also payable to order.
9. As far as PLD 1993 Lah.569 is concerned the same cannot also be made applicable to the present set of circumstances as that was a case where e learned Additional District Judge dismissed the application of the defendants for grant of leave to appear and defend the suit and it wad held at prima facise case for grant of leave was made on the ground of a specific ea that no consideration was ever passed. Moreover; a perusal pf the 6dence shows that the respondent has successfully discharged the burden of roving of Issue No.4 not only about the execution of the Promissory Note (Exh. P1) but also receipt (Exh.2). The learned trial Court has scanned the itire evidence and no misreading/non-reading of any material piece of vidence was committed. It is also an admitted fact that the appellant issued a teque of Rs.1,00,000 in favour of the respondent, though the plea of the appellant is that the same was issued by way of a collateral security with regard to a dispute between respondent and his brother, yet the fact remains pat the amount of the Promissory Note and the cheque (Exh.P3) is the same. This plea is also negated from the fact that the appellant's brother had filed a suit for declaration of insolvency and that has no link , with the dispute between the respondent and the appellant. The arguments of the learned Counsel for the appellant that none of the Witnesses i.e. Scribe, marginal witnesses had deposed about the payment of the suit amount before them and otary Public who allegedly signed the document was not produced, is not much significance as the execution of Ekhs-P1 and P2 (Promissory Note id receipt) as noticed above have been duly proved and the respondent as P.W.1 deposed on oath about, the payment of suit mount but even no suggestion was made to him that the said amount was of actually paid. It is well-settled that a fact deposed in examination-in---chief, if not cross- examined, would be deemed to be admitted correct by the there party.
10. Thus, seen from any angle I am convinced that the learned trial Court has passed the impugned judgment and decree on a due appreciation of law and facts.
11. For what has been stated above, the instant appeal fails and the same dismissed leaving the parties to bear their own costs.