2014 PLP 1420 (CLD)

IBAD-UR-REHMAN LODHI J.

A suit before the learned District Judge, Sialkot, under the provisions of Order XXXVII, C.P.C. was filed by the present respondent on 14-6-2013, and in response to the summons issued to the defendant/present appellant he made his appearance before the learned Additional District Judge to whom the said suit was entrusted on 24-6-2013, but subsequent thereto, never applied for leave to appear and defend the suit. Resultantly, the learned Additional District Judge, without asking the plaintiff to produce any evidence, straightaway proceeded to decree the suit only on account of failure on the part of the defendant to pray for the leave to appear and defend the suit.

2. Leaving the merits aside, the present appeal has been filed, on the ground of lack of jurisdiction on the part of the District Judge to adjudicate upon the suit filed before him, on the plea that the same was never based on any negotiable instrument.

3. In support of his plea, the learned counsel for the appellant has drawn my attention to para-3 of the plaint, wherein, the proceedings before a Criminal Court were referred, where on account of some settlement in between the parties, an amount of Rs.1,73,000 was paid to the plaintiff, and with regard to the remaining amount of Rs.15,00,000, an affidavit was sworn by the defendant to the effect that the same shall be paid till 24-12-2012. Earlier issuance of some cheque of the amount of Rs.16,73,000 was although referred, but the affidavit, referred to hereinabove, has been made basis for the filing of the suit under Order XXXVII, C.P.C.

4. The learned counsel for the respondent, conversely, supported the decree dated 25-9-2013 and submitted that the learned District Judge has righty exercised his jurisdiction vested in him under the provisions of Order XXXVII, C.P.C.

5. In view of Order XXXVII, Rule 2, C.P.C., all suits upon bills of exchange, hundies and promissory notes, may be instituted by presenting a plaint before the competent Court. In view of sub-rule (2) thereof, in case the defendant in such suit does not appear or fail to defend the suit by taking leave of the Court in this regard, the suit "can be decreed".

6. This Court by Notification No.338/Rules XI-Y-26, dated 20-10-2001, has added sub-rule (1) in Rule (2) of Order XXXVII, C.P.C. to the following effect:-- "(1) Subject to the provisions of Rule 1,this Order applies to following classes of suits namely:- (a) suits upon bills of exchange, hundies and promissory notes; (b) suits in which the plaintiff seeks only to recover a debt or liquidated damage in money payable by the defendant with or without interest arising: (i) on a contract express; or (ii) on an enactment where the sum sought to be recovered is a fixed sum of money or in the nature of debt other than a penalty; or (iii) on a guarantee where the claim against the principals in respect of debt or a liquidated damages only; or (iv) on a trust. (c) suit for recovery of immovable property with or without claim for rent or mesne profits, by a landlord against a tenant whose term has expired or has been duly determined by notice to quit or has become liable to forfeiture for non-payment of rent or against persons claiming under such tenant."

7. The learned trial court has never bothered to see as to whether the plaint presented before it asking the Court of District Judge to exercise its jurisdiction under the provisions of Order XXXVII, C.P.C. was filed on the basis of any negotiable instrument, in view of the provisions of sections 79 and 80 of the Negotiable Instruments Act, 1881, rather simply on account of failure on the part of the defendant of the suit in not filing an application for the leave of the Court to appear and defend the suit, straightaway decreed the suit. It is not evident from the record as to if the plaintiff produced even any copy of the cheques, mentioned in his plaint, and further it is clear that the learned trial court never required the plaintiff to produce any evidence in support of his plaint and to produce any documentary evidence in order to bring his suit within the ambit of a summary suit under Order XXXVII, C.P.C. It was the inherent duty first of the plaintiff and then the learned trial Court to see as to whether the plaint of the suit, filed under such provisions of C.P.C. can be treated a suit filed upon any bill of exchange, hundies or promissory note within the meaning of negotiable instrument as defined under the provisions of the Negotiable Instruments Act, 1881. Although in case of failure on the part of the defendant in such suit to apply for leave of the Court to appear and defend the suit, the learned trial Court was competent to decree the "suit" but when this term "suit" is provided in sub-rule (2) clause (a), the same is necessarily referable to the term "suit" used in rule 2(1) of Order XXXVII, C.P.C., thus, in absence of any evidence on record to show that the suit was filed upon any negotiable instrument, the learned District Judge was not competent to entertain and decide such suit.

8. It is a foremost and bounden duty of every District Judge to direct their office to examine the suits filed under Order XXXVII, C.P.C. at the time of their filing as to whether the same are filed upon any negotiable instrument viz. bills of exchange, hundies and promissory notes, and a specific separate report must be available on the file of every such suit and only then further proceedings are to be taken in such suits.

9. In view of what has been discussed above, the judgment and decree passed by the learned trial Court on 25-9-2013, is not sustainable in the eye of law, and the same is, therefore, set-aside by accepting this appeal.

10. Since the plaintiff, respondent herein, filed his suit before a wrong forum; therefore, keeping in view the provisions of Order VII, Rule 10, C.P.C., it is directed that the plaint of the Civil Suit No.6 of 2013, filed before the learned District Judge, Sialkot, on 14-6-2013, be returned to the plaintiff/respondent herein, for its presentation to the court of general jurisdiction, where the suit should have been instituted. AG/G-7/L Order accordingly.