1994 PLP 2103 (CLC)

S.M. Akil Fikree v. Muhammad Qamaruz Zaman PLD 1982 Kar. 745 and Sh. Abdul Majid v. Syed Akhtar Hussain Zaidi PLD 1988 SC 124 ref. M. Ashraf for Petitioner. This petition under Article 199 of the Constitution of Pakistan (1973) by Muhammad Arif/defendant, calls in question the order dated 3‑3‑1993 whereby the learned Additional District Judge, Gujrat dismissed the revision application filed by the petitioner and affirmed the order of learned Civil Judge, Ist Class, Kharian dated 12‑3‑1992/dismissing the application lodged by the petitioner under section 12 (2) of the Code of Civil Procedure. 2. The facts, briefly stated, giving rise to this petition, are: that respondent No.l brought a suit in the Court of learned Civil Judge, Kharian for the recovery of Rs.1,33,000 against the petitioner on the basis of promissory note dated 26‑3‑1984. The suit was resisted. Necessary issues were framed. The evid8ace of respondent was recorded where after the case was adjourned for recording the evidence of the petitioner on number of dates at the instance of the petitioner. On 11‑4‑1990, the counsel for the petitioner requested for a short postponement enabling him to produce the evidence at 11‑00 A.M. The Court was obliged to accommodate the learned counsel for the petitioner. At 11‑00 A.M. neither the learned counsel for the petitioner nor his evidence was in attendance. As a result, the Court proceeded ex parte and the suit was ultimately decreed ex parte on 6‑5‑1990. No appeal was filed against this decree which became final after the lapse of statutory period of limitation. On 1‑9‑1990, the petitioner filed an application under section 12 (2) of the Code of Civil Procedure read with Order IX, Rule 13 for setting aside the ex parte decree on the premises that the suit was based upon negotiable instrument and, therefore, the ordinary Court had no jurisdiction in view of bar contained in Order XXXVII of the Code of Civil Procedure (shortly stated as the Code). This application was contested and was dismissed by the Court of the first instance on 12‑3‑1992. 3. Feeling aggrieved with this order, the petitioner preferred revision petition, which, too was dismissed by the learned Additional District Judge, Gujrat on 3‑3‑1993. 4. The main and only grievance of the petitioner is that suit was instituted in the Court of Civil Judge, Kharian on the basis of a promissory note who had no jurisdiction to entertain and adjudicate the suit. According to the learned counsel the only Court competent to receive and hear the suit was the District Judge, Gujrat under Order XXXVII, Rules 1 and 2 of the Code. On the strength of this circumstance, it was contended that the judgment and decree passed by the learned Civil Judge, Kharian dated 6‑5‑1990 was void ab initio and ought to have been set aside by the revisional Court under section 115 of the Code of Civil Procedure. 5. After hearing the learned counsel for the petitioner at a considerable length, I am not persuaded to agree with him. Order XXXVII of the Code provides a special procedure to be followed in suit covered by Rule 2 of this Order. These suits are designated as summary suits and arise out of negotiable instruments like bill of exchange, Hundis or promissory notes. The perusal of Rule 2 of Order XXXVII of the Code clearly indicates that it is procedural and enabling in nature. It gives option to the plaintiff to proceed hereunder by presenting a plaint in the form prescribed and further prescribed that summons shall be in Form No.4 in Appendix B or in such other form as may be from time to time prescribed. It never places any embargo upon the plaintiffs to file suit in Civil Courts by following ordinary procedure embodied in the Code. From this, it clearly follows that none of the Rules contained in Order XXXVII provides a road‑block in filing a suit before the learned Civil Judge. This being the legal position, the point canvassed by the learned counsel for the petitioner is hardly tenable and is accordingly repelled. Reference be made to S.M. Akil Fikree v. Muhammad Qamarui Zaman (PLD 1982 Karachi 745) and Sh. Abdul Majid v. Syed Akhtar Hussain Zaidi (PLD 1988 SC 124). 6. In the light of foregoing discussion, this petition is found to be wholly destitute of legal merit and is accordingly dismissed in limine. H.B.T./M‑1615/L ?????????????????????????????????????????????????????????????????????????????? Petition dismissed.