2018 PLP 1941 (CLC)

SHAKEEL AHMAD, J.

Through this judgment, the petitioner has called in question the order dated 30.10.2017, passed by the learned Additional District Judge-V, D.I. Khan, whereby petitioner's application filed under Order VII Rule 11 Code of Civil Procedure, 1908 was dismissed.

2. The facts giving rise to the instant revision petition, in brief, are that the respondent brought a suit for recovery of Rs.83,000/- against the petitioner/defendant. It was asserted in the plaint that the respondent is carrying on the business of electronics appliances in the name of Amin Electronics. On 6.3.2013, the petitioner/defendant approached the respondent/plaintiff and showed his intention to purchase fridge, to this effect an agreement was executed between the parties on 06.3.2013 which was duly thumb impressed. The agreement was witnessed by its marginal witnesses namely Lal Hussain and Atlas Khan. Out of the total sale price (38,500/-), an amount of Rs.2600/- was paid in advance and rest of the amount Rs.35,900/- was to be paid in easy instalment @ Rs.2600/- per month till 10.9.2013. Out of the total sale amount Rs.15600/- was paid and the remaining amount i.e. 22900/- is still outstanding. Again on 04.5.2013, the petitioner approached respondent to express his desire to purchase U.P.S along with Battery Exide 200 plus and also executed a written agreement for payment of amount in question in installment but he failed to pay the amount of installment and on his insistence, issued a cheque bearing No.8405102. On 07.4.2014 for the payment of price of the fridge and U.P.S but when it was presented for encashment to the bank concerned, it was bounced, whereafter the respondent filed a suit under Order XXXVII, C.P.C. for recovery of amount in question on the basis of cheque issued by the petitioner.

3. During the pendency of the suit, the petitioner submitted an application for return of the plaint on the ground that the court has got no jurisdiction to adjudicate upon the matter. The learned trial court after hearing the arguments on the application dismissed the same vide order dated 30.10.2017 and hold that court has got jurisdiction to adjudicate upon matter.

4. Despite service, the learned counsel for the petitioner is not in attendance, repeated calls were made, but none appeared. This case was kept for waiting till 2:00 PM but the learned counsel for the petitioner did not appear before the Court. Though this case deserves to be dismissed for non-prosecution but instead of dismissing the revision petition for non-prosecution, I decide the same on merits.

5. Perusal of the para. No.2 of the application for return of plaint reveals that the petitioner asserted that the cheque does not fall within the definition of negotiable instruments, therefore, the suit under Order XXXVII Rule, 2 C.P.C. is not competent before the learned Additional District Judge.

6. Cheque has been defined under section 6 of the Negotiable Instruments Act, 1881, which reads as under:- A "cheque" is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand.

7. A bare perusal of the ibid section reveals that the cheque falls within the definition of Negotiable Instruments Act, 1881 as defined by section 6 of the ibid Act. Section 6 of the said Act further provides that "a negotiable instrument means a promissory note, bill of exchange or cheque payable either to order or to bearer". Sub-Rule (2) of Order XXXVII C.P.C. provides that:-- (1) All suits upon bills of exchange, hundies or promissory notes may in case the plaintiff desires to proceed hereunder, be instituted by presenting a plaint in the forum prescribed; but the summons shall be in Form No.4 in Appendix B or in such other form as may be from time to time prescribed. A plain reading of the definition of the Negotiable Instrument and bill of exchange make it crystal clear that the cheque falls within the definition of negotiable instrument whereupon the plaintiff can file suit under order XXXVII Rule 2, C.P.C., therefore, the Court below rightly dismissed the application filed by the petitioner and took cognizance.

8. For the foregoing reasons, I find no illegality, irregularity or jurisdictional defect in the impugned order passed by the learned Additional District Judge-V, D.I. Khan, therefore, the same is maintained and the revision petition being bereft of merits is dismissed in limine. ZC/188/P Revision dismissed.