2018 PLP 28 (CLD)

IBAD-UR-REHMAN LODHI, J.

The present respondents filed a suit for recovery of Rs.3,84,00,000/- (three crore and eighty four lacs) in total under the provisions of Order XXXVII, Rule 2, C.P.C. on the basis of two separate stated pronotes. On receipt of notice in the said suit, the present appellant, who was defendant in the suit, moved the learned trial court for grant of leave to appear and defend the suit by filing a petition in this regard showing that at the time of filing of such petition, he was confined in Camp Jail, Lahore and thus, was not a free agent. The learned Additional District Judge, Lahore seized of the matter by means of order dated 08.10.2015 refused to grant leave to the present appellant to appear and defend such suit and as a consequence thereof, the suit of the respondents was decreed for original amount of Exh.P-2 Rs.1,00,00,000/- and Rs.50,00,000/- with reference to Exh.P-3. Such order and decree has been called in question by the appellant in this appeal. On the other hand, the plaintiffs by jointly signing the memo of cross objections have filed the same within the meaning of Order XLI, Rule 22, C.P.C. Through the cross objections, the relief of profits on the decreed amount is claimed, which are being disposed of with this appeal.

2. I have heard learned counsel for the parties and gone through the record.

3. For disposal of this appeal as well as cross objections, the provisions of Order XXXVII, Rule 3, C.P.C., which are of much significance, are reproduced herein below for convenience:- "3(1). The Court shall, upon application by the defendant, give leave to appear and to defend the suit, upon affidavits which disclose such facts as would make it incumbent on the holder to prove consideration, or such other facts as the Court may deem sufficient to support the application." The careful perusal of above provision of law denotes to the position that it consists of two distinct parts. The first one requires the filing of application for leave to appear and defend the suit upon affidavits, whereas the second part gives power to the Court to grant leave to appear and defend the suit on such other facts as the Court may deem sufficient to support the application. By use of word 'or' after comma (,) occurring after the word "consideration" in Order XXXVII, Rule 3, C.P.C. clearly indicates the intention of legislature to the effect that the word 'or' is used in the said provision of law in a disjunctive sense. Legislation cannot be alleged having a careless attitude in use of word 'or' herein. The use of word 'or' after comma (,) in a statutory provision has been interpreted previously and cases titled "Salehon and others v. The State" (PLD 1969 Supreme Court 267), "Ebrahim Brothers Ltd. v. Wealth Tax Officer, Circle III, Karachi and another" (PLD 1985 Karachi 407), "Muhammad Sanaullah v. Allah Din" (1993 MLD 399), "Bayindir Construction Inc. v. Messrs Haroon Brothers through Proprietor" (2002 YLR 3349) are referred in this regard, which provide guideline in the manner that ordinarily 'or' is used in disjunctive sense, which generally corresponds to word 'either' and that use of a comma (,) and word 'or' between the words and term is not without significance but are employed to manifest that same are to be read disjunctively. It was further held that the use of word 'or' signifies a disjunctive sense and it cannot be read as 'and' unless of course the context provides so. The Concise Oxford Dictionary can also be referred in this regard, which provides the definition of 'or' in the manner that introducing the second of two alternatives (white or black) or introducing all but the first, or only the last, of any number of alternatives.

4. In the case in hand, the learned trial court has failed to liberally interpret the provisions of Order XXXVII, Rule 3(1), C.P.C. and only on account of non-submission of affidavit in support of the petition for leave to appear and defend the suit, non-suited the defendant without determining other facts, which were placed before the Court explaining the reasons for non-submission of the affidavit in support of the petition for leave to appear and defend the suit and thus, a jurisdiction clearly vested in the learned trial court in view of the second disjunctive part of the referred provision of law has not been exercised.

5. Irrespective of the position as to whether a defendant in such summary suit appeared and applied for leave to appear and defend the suit, it was the bounden duty of the Court to examine as to whether the suit filed before it in fact based on a negotiable instrument within the meaning of The Negotiable Instruments Act, 1881. Both the pronotes relied upon by the plaintiffs were entertained by the learned trial court in evidence as Exh.P-2 and Exh.P-3 and perusal of the same do create a clear impression that the same were not negotiable instruments and cannot be termed pronotes for the reason that in clear terms, the stated transaction through such documents was shown as a loan , which was settled to be returnable with a certain amount of profit i.e. 4% in Exh.P-2 and 5%A in Exh.P-3. Promissory note is defined in Section 4 of The Negotiable Instruments Act, 1881, which reads as under:- "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." In case titled "A. Rangaswamy v. K. Govindaswamy Naidi and another" (AIR 1961 Madras 434), it was concluded that the essential of a promissory note is an unconditional undertaking to pay and in the similar manner, in case titled "Sarju Sahu and others v. Sukhi Lal and others" (AIR 1924 Patna 96), it was held that document binding a person to return a certain amount with the settled, interest was not treated as a negotiable instrument/pronote. The plaintiffs in their plaint not only claimed the actual amount mentioned in the stated pronotes but the amount of profit at the rate mentioned in each of the pronote was also claimed. The learned trial court although passed a decree in favour of the plaintiffs with regard to the principle amount of Exh.P-2 and Exh.P-3 and no profit was awarded to the plaintiffs, but the plaintiffs seem not to be contented to such decree and their claim for receipt of profits upon such amount of Exh.P.2 and Exh.P-3 continued and in order to get such profits, they filed cross objections in the present appeal. The manner in which two pronotes were prepared and the insistence of the plaintiffs to get profits upon amount mentioned in such two documents certainly bring out such documents from the definition of a negotiable instrument/pronote.

6. Exh.P-2 and Exh.P-3 were stated to have been entered into, on two separate dates i.e. 01.11.2011 and 19.11.2011 respectively, but the plaintiffs claimed decree on the strength of two distinct documents by filing one and same suit. No doubt, the stated execution of two distinct documents on two different dates gave arise to two separate causes of action to claim amount separately on different dates and both the claims cannot be claimed by filing a joint suit. Learned counsel for the appellant in this regard has placed reliance on case titled "Messrs Hoosen Brothers Ltd., Karachi v. Messrs S. Abdullah & Co. Karachi (PLD 1971 Karachi 729).

7. The learned trial court, while refusing leave to appear and defend the suit to the present appellant has, thus, committed an illegality by not attending to the "other facts", as have been highlighted hereinabove and were also before the learned trial court at the time, when matter for grant of leave was being considered by it, which provides a power to such Court to grant leave even in absence of an affidavit of the defendant in support of the application for leave to appear and defend the suit and therefore, the case of the present appellant has been prejudiced and miscarriage of justice has been caused to the appellant.

8. In view of what has been discussed above, this appeal is allowed and while setting aside impugned order and decree dated 08.10.2015 the matter is remitted back to the learned District Judge, Lahore, while the Suit No.1338/2014 titled "Muhammad Saleem Shad Qureshi and another v. Shehzad Akhtar" will be deemed pending and the learned District Judge, Lahore, after requisitioning the record from concerned quarters would proceed to frame issues and grant same opportunities to both the sides to produce their respective evidence then to decide the suit on merits.

9. The cross objections having no substance are dismissed. MQ/S-73/L case remanded.