Law: Civil Procedure Code (V of 1908)

Section: O.XXXVII, R.1,3

Law: Negotiable Instruments Act (XXVI of 1881)

Section: 120

Law: Qanun-e-Shahadat (10 of 1984)

Section: 17(2) & 59

(a) Civil Procedure Code (V of 1908)---O.XXXVII, R.3---Suit for recovery of money on the basis of negotiable instruments--Leave to defend the suit---Concessionary statement of counsel for plaintiff---Effect---Practice and procedure---Plaintiff asserted that no leave to defend the suit was granted by Trial Court---Validity---Court granted leave to defend the suit on the concessionary statement of counsel of plaintiff, though no statement of the counsel for plaintiff was recorded---Order passed by Court had precedence over the assertions of parties or their counsel to the contrary. Fayyaz Hussain v. Akbar Hussain and others 2004 SCMR 964 rel.(b) Civil Procedure Code (V of 1908)-------O. XXXVII, Rr. 1, 3---Negotiable Instruments Act (XXXVI of 1881), S.120---Qanun-e-Shahadat (10 of 1984), Arts.17(2) & 59---Recovery of money---Promissory note---Proof---Non-production of two marginal witnesses---Handwriting Expert, opinion of---Failure to decide miscellaneous application---Suit filed by plaintiff was dismissed by trial Court on the ground that two attesting witnesses of promissory note did not enter into witness-box---Plea raised by plaintiff was that without deciding his application for referring disputed signatures to Handwriting Expert, Trial Court could not have decided the suit---Validity---Non-appearance of marginal witness was fatal to the case where ordinary document was to be proved like agreement to sell etc.---Since presumption of truth was attached to promissory note, in terms of S.120 of Negotiable Instruments Act, 1881, mere non-production of one of its marginal witnesses was not fatal, specially when scribe, promisee and one marginal witness entered into witness-box to prove its veracity--Trial Court had drawn erroneous conclusion that failure to examine one marginal witness defeated the provisions of Art.17(2) of Qanun-e-Shahadat, 1984---Promissory note was signed by two marginal witnesses, which had met the requirement of S.17(2) of Qanun-e-Shahadat 1984---Without first deciding pending application of plaintiff Trial Court could not have proceeded to pass final ---High Court directed the Trial Court to decide pending application of plaintiff…