2012 PLP 842 (CLD)

KHALID MEHMOOD KHAN, J.

Through this regular first appeal, appellant has impugned the judgment/decree dated 29-10-2010 passed by learned Additional District Judge-VI, D.I. Khan vide which the plaint of appellant was returned to him for its presentation before Court of competent jurisdiction.

2. Short facts of the instant revision are that appellant/plaintiff filed a suit for recovery of Rs.1,00,000 against the respondent/defendant on the ground that the amount in question was paid by him to the respondent/defendant in the shape of loan and in this regard pro note, along with receipt was scribed on 30-5-2007. Thereafter when the appellant/plaintiff demanded to return the outstanding loan the respondent/defendant refused to return the same.

3. Respondent/defendant contested the suit and filed written statement, raised so many legal and factual objections on the maintainability of suit. The learned trial Court after hearing framed issues from the divergent pleas of the parties, directed to produce their respective evidence in support of their claim which they did accordingly. The learned trial Court after hearing arguments of both sides, returned the plaint to the appellant/plaintiff for its presentation before the competent Court of jurisdiction vide judgment/order dated 29-10-2010, hence the instant appeal.

4. Learned counsel for the appellant argued that the suit was filed on the basis of pro note which was exhibited during recording of evidence of the appellant and evidence of both the parties were closed. During course of arguments for the first time this point was raised that the Court has no jurisdiction to entertain the present suit on the ground that the promissory note is not a pro note, rather it is a bond. He contended that on the basis of a case Abdur Rauf v. Farooq Ahmad and another reported in 2007 CLD 114, the plaint was returned to the appellant whereas in the said judgment the appeal filed against a similar nature case was dismissed and was held that the promissory note produced by the respondent/plaintiff which was declared as a pro note, hence decree was upheld. He submitted that the learned trial Court has wrongly interpreted the express provision of law and had drawn wrong inference from the said judgment.

5. Learned counsel for the respondent argued that on the promissory note there is one verifying witness of the signature of the respondent. He contended that after the signature of attesting witness the pro note not remains a pro note rather it will be considers as a bond. He submitted that being so the Court due to lack of jurisdiction had correctly returned the plaint to the petitioner/plaintiff for filing the same before the Civil Court of competent jurisdiction.

6. Arguments heard and record perused, in the light of which my finding is as under.

7. The document on the basis of which the suit was filed it is clearly mentioned that this a promissory note/pro note. The money has been admitted by the executants/respondent which is payable as per demand of petitioner/plaintiff. On back of said promissory note the receipt regarding the payment of disputed money to the respondent/defendant has been acknowledged by marginal witnesses. This document bears the signature of the respondent/defendant. The section l3 of the Negotiable Instrument Act is reproduced for ready reference. "A "negotiable instrument" means a promissory note, bill of exchange or Cheque payable either to order to bearer." The section 4 of Negotiable Instrument Act which is reproduced below:-- "A "promissory note" is an instrument in writing (not being a bank-note or a currency note) containing an unconditional undertaking signed by the maker, to pay on demand or at a fixed or determinable future time a certain sum of money only to, or to the order of a certain person, or to the bearer of the instrument."

8. It clearly indicates that the document produced by petitioner/plaintiff is a pro note because it is expressly mentioned therein that amount of Rs.1,00,000 will be paid to the petitioner/plaintiff on his demand, hence from no score of interpretation or any law the said promissory note can be considered as a bond. The bond has been defined in section 2(5) of Stamp Act which is as under:-- "bond" includes:

(a) any instrument whereby a person obliges himself to pay money to another, on condition that the obligation shall be void if a specified act is performed, or is not performed, as the case may be; (b) any instrument attested by a witness and not payable to order or bearer, whereby a person obliges himself to pay money to another; and (c) any instrument so attested, whereby a person obliges himself to deliver grain or other agricultural produce to another."

9. In the present case it is clearly mentioned on its heading that it is a promissory note. The said pro note is executed by the respondent/defendant on the back of the same receipt regarding the receiving the suit money has also been executed by respondent/defendant, which has been signed by two marginal witnesses. As per contents of the promissory note respondent/defendant is obliged to pay the suit amount on demand of the petitioner/plaintiff. This clearly indicates that the same is a pro note and not a bond and has been envisaged in section 2(5) of the Stamp Act. The dictum laid down in 2007 CLD 114 has been wrongly interpreted by the learned trial Court. Similar nature case has been considered by this Court in case Muhammad Ayaz v. Khan Ayaz Khan reported in PLD 2011 Peshawar 187 and another case of this Court titled Fazal Ellahi v. Akhtar Ali reported in 2011 CLC 334, in which it has been held that by two attesting witnesses do not shatter the very pro note or its legal status. The marginal witnesses are only to be considered as a just endorser of the pro note.

10. In light of above facts the instant appeal is accepted and the judgment/decree of the learned trial Court is set aside. The case is remanded back to the learned Additional Judge-I, D.I. Khan for disposal within four month. The parties are directed to appear before the Court of learned Additional District Judge-I, D.I. Khan. The office is directed to send the record to the Court of learned Additional District Judge-I, D.I. Khan forthwith. H.B.T./332/P Case remanded.