2010 PLP 324 (CLD)

ARSHAD MAHMOOD, J.

This civil revision assails order dated 19-1-2009 whereby application under Order VII rule, 11 C.P.C. filed by the petitioner was dismissed.

2. Facts necessary for the disposal of this petition are that Abdul Khaliq respondent brought a summary suit for recovery of Rs.10,00,000 (rupees ten lac only) on the basis of pro note dated 29-4-1998. Petitioner obtained leave to defend the suit and divergent pleadings of the parties culminated into issues, however, during pendency of the suit petitioner filed an application under Order VII, rule 11, C.P.C. for rejection of the plaint, which was responded by filing a written reply and ultimately dismissed after hearing the counsel for the parties through the impugned order. Hence this petition.

3. Learned counsel for the petitioner while referring to Abdul Rauf v. Farooq Ahmad and another 2007 CLD 114 contends that signing of documents by witnesses ousts it from the purview of promissory note and it becomes a bond on the basis thereof summary suit for recovery is not maintainable and the plaintiff/respondent had to take recourse to the ordinary civil Court.

4. Learned counsel for the respondent on the other side stood behind the impugned order and referred to Sheikh Muhammad Zafar v. Dr. Jehan Ara Ahmad 2002 CLD 257, Altaf Hussain Sajid v. Muhammad Arif 2008 CLC 1489 and Muhammad Ashiq v. Rana Tariq Mahmood 2006 CLD 865 to contend that mere signing of promissory note by witnesses does not exclude it from the definition of a negotiable instrument if other ingredients of promissory note as defined in section 4 of the Negotiable Instruments Act, 1881 are present in the document.

5. I have considered the arguments advanced on behalf of the parties and examined the record.

6. Litmus test to determine as to whether a particular document is a promissory note or a bond is the intention of parties and it must be seen whether parties intended that document should be negotiable or that it was merely to serve as evidence of debt. In the case in hand suit was filed on 7-4-2001. Petitioner instead of objecting the nature of document, straightaway denied its execution and sought leave to defend the suit which was accordingly granted. Issues were framed and respondent produced five witnesses who were cross-examined at length but no suggestion whatsoever was put to them as to nature of the document being a bond and not a promissory note. Thereafter D.W. 1 entered in the witness box but never objected the nature of document. However after lapse of more than seven years on a fine morning of 15-9-2008 petitioner came up with the idea to challenge the nature of document and filed application under Order VII, rule 11, C.P.C. which was dismissed by the learned trial Court. Inaction on the part of petitioner to challenge the nature of document speaks volumes about his intention about nature of the document. Even otherwise, the document was received in evidence without objection from other side. In the case of Abdul Rauf v. Farooq Ahmad and another (supra), as the document was received in evidence without objection although it was signed by the witnesses who were also examined during trial, the decree was upheld in appeal. The case-law banked upon by respondent, supports the proposition of law that character of promissory note does not change even if it is signed by the witnesses.

7. There is another facet of the case, plaintiff has already concluded his evidence and statement of one defence witness has also been recorded. Sole object of filing application for return of the plaint seems to be the delaying tactic. No illegality or legal infirmity in the impugned order has been pointed out, therefore, no case of interference in the exercise of revisional jurisdiction is made out. Resultantly there is no merit in this revision petition, which is dismissed accordingly. M.H./H-42/L Revision dismissed.