2017 PLP 1736 (CLC)

SALAHUDDIN PANHWAR, J.

Through instant suit plaintiff prayed as under:- "It is, therefore prayed that this Hon'ble Court may be pleased to pass a judgment and decree in favour of the plaintiff and against the defendant, thereby directing him to pay to the plaintiff a sum of Rs.100,00,000/- along with an interest thereon at the rate of 20% per annum in the interest of justice."

2. Precisely, relevant facts of the suit as set out in the plaint are that defendant obtained a loan of rupees one crore from the plaintiff on 19.03.2003 in pursuance of a written promissory note dated 19.03.2003, with receipt of said amount, thereafter plaintiff approached the defendant for return of the amount but he avoided to pay the same, such demand was made time and again but with no result, he filed instant suit.

3. Pursuant to notice/summons, defendant appeared; filed written statement wherein denied execution of the promissory note and receipt but raised a plea that he was detained by the plaintiff and under duress those documents were signed by the plaintiff, thus he was not liable to pay the amount as mentioned therein.

4. Following issues were framed by order dated 18.10.2007:- (1) Whether the suit is maintainable in law? (2) Whether the signatures of the defendant on the promissory note and signature on receipt have been obtained by the plaintiff under duress? (3) Whether the amount appearing on the promissory note and the receipt was ever paid to the defendant by the plaintiff? (4) Whether the plaintiff is entitled to any of reliefs sought in these proceedings? (5) What should the decree be? However on 24.03.2008 again issues were re-framed as:- (1) Whether the defendant signed/executed the promissory note in question on 19.3.2003 in favour of the plaintiff? (2) Whether signatures of the defendant on promissory note and receipt have been obtained by the plaintiff under duress? If so, its effect? (3) Whether the amount/mentioned in the promissory note and the receipt was ever passed on to the defendant? If so, its effect? (4) Whether the alleged, complaint dated 25.3.2003 alleged to be moved by defendant to the I.G Police is real or fictitious/bogus because it does not show any acknowledgment by the police? (5) Whether or not the defendant subsequently avoided to pay/refund the said loan amount on demands to the plaintiff? (6) What should the decree be? Finally vide order dated 24.11.2008 issues framed through both orders were examined and accepting the issues framed on 24.03.2008, following additional issue was added:- Whether the suit filed by the plaintiff is not maintainable under the law?

5. Plaintiff's attorney Qadir Khan Mandokhel examined himself and also examined witness namely Imran Ghani. Defendant Masood Asghar examined himself. All witnesses examined were cross-examined by respective parties.

6. At the outset learned counsel for plaintiff contends that execution of promissory note and receipt is not denied by the defendant hence instant suit is liable to be decreed. He support of his contention, he has relied upon 2010 CLC 1028 and 2011 CLC 837.

7. In contra, learned counsel for defendant contends that albeit execution of documents were not denied but such documents were obtained by plaintiff on gunpoint; plaintiff's agent lodged FIR against the defendant on 19.03.2003 whereas, execution of promissory note shows date as 19.03.2003 and it is strange how within three days after lodgment of FIR by said agent such amount can be paid by the plaintiff. He also contends that instant plaint is filed by the advocate of the plaintiff and he has also examined himself; plaintiff failed to lead his evidence or produced any witness or substantiation proof that how such huge amount was paid in cash.

8. In rebuttal, the plea that an advocate cannot verify the plaint as well examine himself, was denied by learned counsel for plaintiff on the ground that the plaint was filed by an advocate in the capacity of attorney of the plaintiff.

9. Since legal issue was framed, therefore it would be just and proper to answer that first. Whether the suit filed by the plaintiff is not maintainable under the law? I am quite conscious of the legal position that law nowhere takes the states of `advocate/Vakeel' as a legal bar for such a person to become an 'attorney' for appearance, application or act in or to any Court. The position being so, shall stand clear from a reference to Order III, Rule 1 of the Code which reads as: `Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf: Provided that any such appearance shall, if the Court so directs, be made by the party in person.' However, one legally cannot enjoy duel status of 'Advocate for....' so also 'attorney for.....' One cannot appoint himself to represent himself because it sound absurd and even is against definition of 'pleader' provided by Section 2(15) of the Code. It, being relevant is referred hereunder:-- "Pleader" means any person entitled to appear and plead for another in Court and includes an advocate, a vakil and an attorney of a High Court. From above, it is clear that 'pleader' is entitled to appear for 'another' and not for himself. Thus, now I would conclude that if one wants to represent his/her client as 'advocate' then he (Advocate) is not legally entitled to examine himself in place of his part (client) because for such purpose he shall have to unclothe his status as 'advocate' and shall have to clothe with 'attorney/authorized agent'. The legal position shall stand clear from a reference to Order III, Rule 4(1) of the Code which reads as: "No pleader shall act for any person in unless he has been appointed for the purpose by such a document in writing signed by such person or by his agent or by some other person duly authorized by power of attorney to make such appointment." (emphasis supplied) These have been reasons which has made it a settled principle of law that under the code of ethics an advocate is not supposed to file an affidavit-in-evidence in support of an interlocutory application even or to give evidence in person.

10. Now, reverting to merits of the case, the perusal of record shows that plaintiff has submitted two documents, one is the promissory note and second one is receipt. The promissory note reflects that there is cross on word 'demand' and it reads as under:- "I hereby promise to pay the amount of Rs.10000000/-(Rupees one crore) as per schedule agreement." Since it is not disputed and this promissory note is relied by the plaintiff but such agreement is not produced by the plaintiff. The plaintiff claims existence of such document but has not produced the same which allows either to presume its non-existence (Article 95 of Qanun-e-Shahadat Order, 1984) or that had it been produced it would not have supported the plaintiff (Article 129(g) of Order). The Section 4 of the Negotiable Instrument Act requires that it should be an unconditional promise for making payment. Since, the agreement has its own meaning and definition hence if there is a promise to pay certain amount with reference to 'agreement' it will be sufficient to bring such a document out of the scope of Section 4 of the Act. In such eventuality, it cannot be termed as a short cause within the ambit of Order XXXVII of the Code and the holder of such document (plaintiff) would be required to file a regular suit in the court having jurisdiction. Accordingly instant suit is dismissed being not maintainable on the point of jurisdiction which issue always requires prime consideration because it may turn a decision into coram non judice. However, the plaintiff would be at liberty to institute a suit for recovery of the amount on the basis of that agreement, if so advised subject to legal exceptions. MH/F-10/Sindh Suit dismissed.