P L D 2006 Supreme Court 418 (PLP)

CH. IJAZ AHMAD, J.

The brief facts out of which the present petition arises are that Plot Nos. 5 to 9 measuring 6 kanals situated in Aziz Shaheed Road, Sialkot Cantt. which was allotted to the petitioner under old grant lease. Petitioner executed agreement to sell on 7-8-1983 in favour of respondent. Respondent filed suit for specific performance in the Court of Civil Judge Sialkot against petitioner and others. Matter was settled between the parties by way of compromise. Parties submitted application before the trial Court to decide the suit in terms of the compromise which was rejected by the trial Court vide order dated 11-7-1990. Consequently the trial Court decreed the suit vide judgment and decree dated 4-11-1992. The petitioner did not file appeal against the aforesaid judgment and decree dated 4-11-1992 before the appellate Court. Respondent had made part payment and executed pro note dated 24-6-1993 for payment of Rs.6,50,000 in view of settlement arrived between them. Muhammad Shafqat and Qaisar Mehmood Cheema other defendants in the said suit had tiled R.F.A. No.242 of 1992 in the Lahore High Court which was dismissed as withdrawn vide order dated 26-5-1996. Respondent had failed to discharge the other liabilities in terms of the pro note. Petitioner being aggrieved filed a suit for recovery of Rs.6,50,000 under Order XXXVII, Rule 2, C.P.C. in the court of Additional District Judge Sialkot. Respondent submitted application to appear and defend the suit which was allowed and respondent had filed written statement. The learned trial Court out of the divergent pleadings framed four issues including the relief as depicted from para. 3 of the impugned judgment. The learned trial court dismissed the suit vide judgment and decree dated 2-2-1999. Petitioner being aggrieved filed R.F.A. No.204 of 1999 which was also dismissed by the learned High Court vide impugned judgment dated 15-3-2005.

2. The learned counsel of the petitioner submits that both the Courts below erred in law to dismiss the suit of the petitioner in terms of section 28 of the Contract Act. The petitioner had filed suit on the basis of the pro note dated 24-6-1993 wherein the sum of Rs.10,000 was agreed to be paid by the respondent to the petitioner subject to forego the rights in appeal and both the Courts below were influenced by the words to forego the rights in appeal. These words are part and parcel of pro note, therefore, both the Courts below were not justified to non suit the petitioner merely on the said ground and had decided the case against the petitioner in violation of the mandatory provisions of the, Negotiable Instruments Act (XXVI) of 1881.

3. We have given our due consideration to the contention of learned counsel of the petitioner and perused the record. It is better and appropriate to reproduce the operative para. of the pro note, operative part of C.M..A. No.1-C of 1996 in R.F.A. No.242 of 1992, order dated 26-5-1996 and section 28 of the Contract Act to resolve the controversy between the parties:-- PRO NOTE: C.M. NO.1-C IN R.F.A. NO.242 OF 1992. "That as is evident from the perusal of the appeal, the appeal was tiled by two appellants, namely, Muhammad Shafqat and Qaiser Mahmood Cheema. Appellant No.2, Qaiser Mahmood Cheema has reached an understanding with Mian Iqbal Hussain, respondent No.1 and in the wake of the compromise, he is not interested in the prosecution of the appeal to his own extent; without prejudice to the rights of appellant No.1, namely, Muhammad Shafqat, co-appellant." ORDER DATED 26-5-1996. "The appellants have moved these applications for withdrawal of the appeal and they do not want to press it. The appellants have placed on record photostat copies of their N.I.Cs Nos.301-88-329534 and 300-91-305945. The appeal is hereby dismissed as withdrawn." SECTION 28 OF THE CONTRACT ACT: "Agreement in restraint of legal proceedings void. Every agreement, by which any party thereto is restricted absolutely from enforcing his right under or in respect of any contract, by the usual proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, is void to that extent."

4. It is a settled principle of law that document must be construed and read as a whole as the law laid down in the following judgments: (i) N.S. Krishnaswami Ayyangar's case (PLD 1949 P.C. 289). (ii) Mian Nawaz Sharif's case (PLD 1993 SC 473). (iii) Ihsan Ilahi's case (P.L.D 1967 SC 200).

5. It is also a settled principle of interpretation that at the time of construing the document the intention of the parties to be gathered from contents of the document meaning thereby substance of the document must be kept in mind and not the form of the document. Document in question containing admission against his own interest in terms of section 28 of the Contract Act provides intrinsic evidence of its genuineness. In case the pro note along with the intention of the parties are put in a juxtaposition, then it is crystal clear that document in question is not pro note in terms of the provisions of Negotiable Instruments Act. Condition prescribed in the document to forego his right of appeal brings the document outside the purview of the provisions of Negotiable Instruments Act and falls under the provisions of Contract Act automatically, meaning thereby despite the fact that it was written on the pro forma of pro note but due to the condition in the document in question had changed its status from pro note into an agreement to contract. Under the law no man can exclude himself from the protection of Courts by contract. See AIR 1947 PC 116=45 Indian App

61. It is a settled principle of law that section 28 of the Contract Act applies where there is absolute restraint against the enforcement of rights. See AIR, 1921 Madras 599, AIR 1916 Lahore 89, AIR 1928 Sindh

481. In case c the aforesaid contents of the documents, contents of C.M.A. No.1-C/1996, order dated 26-5-1992 are put in juxtaposition with section 28 of the Contract Act then we do not find any infirmity or illegally in the impugned judgment of the Lahore High Court. It is also an admitted fact that both the Courts below had given concurrent findings of fact against the petitioner after proper appreciation of evidence on all the material D issues. It is a settled proposition of law that this Court cannot interfere in the concurrent findings of fact recorded by both the Courts below while exercising power under Article 185(3) of the Constitution as the law laid down by this Court in the following judgments:-- (i) Malik Muhammad Ishaque's case (PLD 1977 SC 109). (ii) Noora's case (PLD 1973 SC 469).

6. In view of what has been discussed above, we do not find any merit in this petition which is dismissed. Leave to appeal is refused accordingly. M.B.A./R-7/S????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.