1998 PLP 1028 (CLC)

In this civil revision order, dated 12‑7‑1984 of the learned Additional District Judge, Lahore, has been challenged, whereby, an application under Order 7, Rule 11, C.P.C. filed by the petitioner, for rejection of plaint in a suit under Order 37, Rule 2, C.P.C., was dismissed.

2. The facts leading to this revision petition are that a suit for recovery of Rs.1,00,000 on the basis of promissory note, dated 16‑9‑1979 was filed by Ch. Muhammad Akbar, respondent herein against the petitioner Naeem‑ud‑Din Khan, wherein it was claimed that the petitioner, despite promises and execution of promissory note, had failed to pay the amount of promissory note, even after notice, dated 3‑3‑1982. The suit was resisted on the grounds that the promissory note was executed at Karachi, the Courts had no territorial jurisdiction. The promissory note was not properly stamped, the suit was not maintainable and the promissory note lacked characteristics of negotiability, and that the stamps were not properly cancelled.

3. After issues, the evidence of respondent was recorded, whereafter certain adjournments were given to the petitioner for reducing evidence who opted to file an application, dated 5‑2‑1984 under Order 7, Rule 11, C.P.C. for, rejection of the plaint, on the plea that the promissory note being payable at a specified place was not presented for payment and, therefore, the suit was not competent.

4. The application was dismissed by the learned Additional District Judge, vide order, dated 12‑7‑1984 which led to the filing of this revision petition.

5. Learned counsel for the petitioner while making reference to the provisions of sections 61 to 76 of Negotiable Instrument Act argued that the promissory note being payable at a specified place was required to be presented in order to charge any party thereto for the payment and that the same having not been alleged to be presented, the suit was incompetent. He contended that the suit was not maintainable in view of section 64 of the negotiable Instrument Act of 1881. He also relied on AIR 1935 Peshawar 132, AIR 1937 Lahore

259. AIR 1936 Lahore 799, AIR 1920 Lahore

80. He maintained that the address of the petitioner was known to the respondent, therefore, he was bound to present the promissory note at the place of abode or business of the petitioner and that any breach in this regard would make the suit incompetent.

6. On deeper consideration of the submissions made by the learned counsel for the petitioner, in the light of the relevant material annexed with the petition, it is observed that for the reason hereafter, this petition has no substance and is devoid of merit.

7. The learned Additional District Judge, dismissed the application, on the ground that in the pronote no proper place was specified for the return of amount or presentation of the document and, therefore, it was held that the document fell within exception to section 64 of the Negotiable Instrument Act. He took the view that the promissory note, made reference to place "Lahore" which was used in general sense without making any reference to the specified place for presentation of the document or for the payment of the amount. He placed reliance on AIR 1935 Lahore 623 and AIR 1942 Bomb.

251. In the first mentioned case, it was held that term "specified place" depends on the circumstances of each case. In the said case, the promissory note, was payable in Sialkot on demand where it was held that no presentation was necessary as Sialkot was not a specified place for the purposes of demand. Exception to section 64 of the Negotiable Instrument Act was relied which envisages that where promissory note is payable on demand and not payable at a specified place, presentation will not be necessary in order to charge the maker thereof, nor presentation is necessary to charge the acceptor of a Bill of Exchange. The application was, therefore, rejected by the learned Additional District Judge.

9. The reasons which prevailed upon the learned Additional District Judge, appear to be sound enough, if the matter is considered in the light of circumstances, taken note hereafter.

10. In the first instance, the promissory note indicates that it was executed at Karachi while the amount mentioned therein was payable at Lahore. The document does not indicate the specific particulars of the place of payment with reference to the property number, street, or Mohallah or other place of business. On the contrary it makes reference to the place of general sense i.e., Lahore. In the written‑statement though a number of objections were raised to challenge the maintainability of suit and jurisdiction of the Court, yet no specific objection was raised on the plea which was being introduced through an application under Order 7, Rule 11, C.P.C. It was not alleged in the written‑statement that the promissory note required presentation at a specified place or that the same was not presented and also that on account of any alleged non‑presentation, the suit had become incompetent. The objection as to the territorial jurisdiction, insufficiency of the stamps, negotiability of the document, absence of cancellation of stamps, were, no doubt raised in the written‑statement yet the factual plea in terms of sections 64 and 68 of the Negotiable Instrument Act was not specifically raised. Obviously, it is a question of fact as to whether the promissory note required presentation or that the suit had become incompetent on account of non‑presentation of document. This controversy will, of‑course, require evidence for determination and conclusive decision and in the absence of any pleadings, neither recording of evidence would be possible nor any finding could be given. Since this objection was not taken in the written‑statement, the petitioner could not possibly raise this plea through backdoor. No doubt, the petitioner could amend the written‑statement to raise the plea or could apply for framing of issue to the basis of application filed by him subsequently under Order 7, Rule 11 of C.P.C. for the rejection of the plaint, on the alleged ground of non‑presentation of promissory note, but nevertheless outright rejection of the plaint without evidence, would not have been possible in view of the nature of the objection raised. The plaint could be rejected only on the statement contained therein, the suit was barred by any law, it was insufficiently stamped or on being required to make‑up deficiency, the same was not made‑up. Assuming correctness of factual plea in defence could not reject it, nor the disposal of the suit on such application was possible without framing of issues and recording of proper evidence. In this view of the matter, the application filed by the petitioner seeking rejection of the plaint, could not sustain and was rightly rejected.

11. As to the merit of the plea, the petitioner had placed reliance on sections 64 and 68 of the Act in ibid and also certain decisions. Reliance has been placed on Firms Sheikh Muhammad Ismail Maula Bakhsh v. Mian Abdul Majid Khan and another (AIR 1937 Lahore 259) and Sher Muhammad Khan Zamanuddin Khan v. (Firm) Mian Haji Ahmad Gul Abdul.Aziz and others, (AIR 1935 Peshawar 132) wherein it was observed that mere demand of the money would not amount to presentation of the note and that the presentation of the note was necessary, when it was payable at a specified place. In Muhammad Hayat Khan and others v. Khair Din (AIR 1937 Lahore 892), it was held that the word "drawer" in section 76 of the Act (ibid) did not include makers of the promissory note. No doubt, section 64 of the Negotiable Instruments Act contemplates that subject of the provisions of section 76 of the Act, the promissory note must be presented for payment to the maker and in default of presentation the other party thereto is not liable thereon to such holder. Similarly section 68 provides that promissory note payable at a specified place, in order to charge any party thereto be presented for payment at that place. Likewise, section 69 of the Act (ibid) contemplates that the promissory note payable at a specified plea, in order to charge the maker be presented for payment at the place. From the language of section 64 it will appear that default in presentation does not affect the liability of the maker, acceptor and drawee and the words other parties in the section mean parties other than those to whom the instrument in required to be presented for payment under this section. The other parties will be the parties other than the maker of the promissory note. Even exception to the section would show that if the promissory note is not payable at a specified place no presentation is necessary in order to charge the maker thereof. Section 64 is further subject to the provisions of section 76 of the Act which provides that no presentation for the payment is necessary and the instrument shall be deemed to have been dishonoured on due date for presentation if the maker, drawee or acceptor intentionally prevents presentation of the instrument, if the instrument is payable at the place of his business and he closes such place on business day during usual business hour, if the instrument is payable at some other specified place neither he nor any person authorised to pay it attends at such place during the usual business hour or if the instrument not being payable at a specified place, he cannot after due search be found. It further provides that the presentation is not necessary as against the party, if he has agreed to pay notwithstanding the non‑presentation or if after maturity, he makes part payment or otherwise waives his right to take advantage of any default in presentation or if the drawer could not suffer damage for want of such presentation or whereafter the exercise of reasonable diligence the presentation as required by the Act cannot be affected. From the provisions of section 76 of the Act it; thus, becomes obvious that if any situation covered by the section would exist, the non‑presentation will not be fatal. In this view of the matter, the person claiming payment of the basis of promissory note, can prove that the maker of the promissory note intentionally prevented presentation or that he closes his place of business or that there was no authorised person to attend presentation or that he could not be found after due search or that he had waived his right or also that he would not suffer any damage for the want of presentation. All these questions would require evidence for final determination. Unless and until, the plea is specifically raised in the written‑statement, the issue is framed, the evidence is led, dismissal of the suit could not be applied on any erroneous or any illegal assumption as to the non‑presentation of promissory note or its effect. In Muslim Commercial Bank Ltd. v. Agha Shahab‑ud‑Din (1986 MLD 952) it was held that the determination of the plea that the claim could not be entertained for want of presentation of promissory note, required evidence. Whether the presentation as required by the Negotiable Instruments Act was made or not and whether the facts and circumstances, existed justifying absence of presentation or whether the presentation was required, were questions of facts which would require evidence. It was held that the effect of presentation of promissory note of failure to do so could be decided only on the basis of evidence. It was further observed that if the plea was not raised in the written statement nor at any stage amendment was sought for introducing such plea, the Appellate Court could not have allowed raising of this plea or give findings by assuming non‑presentation. In Muhammad Rafiq v. National Bank of Pakistan (1985 SCMR 2047), it was held that the prepondence of case is that the promissory note falls due within the meaning of section 22 of the Negotiable Instrument Act on the date when it is made and consequently under section 32 of the Act, the maker is bound to make payment on the same date and presentation for the payment is unnecessarily, having regard to the provisions of section 64 of the Act. It was held, that the date at which the pronote ought to have been paid by the party charged within the meaning of section 80 of the Negotiable Instruments Act is the date of pronote itself.

12. In the light of the rule laid in the precedent cases noted supra, it is observed that the application, filed by the petitioner was untenable and that the plaint could not be rejected on any erroneous assumption of non‑presentation of promissory note. The petitioner did not raise objection in the written‑statement' nor applied for amendment in the written‑statement to raise such plea. No specific issue having been framed, nor, any evidence led by raising the plea specifically, rejection of plaint could not be applied and resultantly, the application was nothing but a mala fide device to delay the case by adopting extraneous methods. There was nothing to debar the petitioner from taking the specific objection in the written‑statement or to apply for amendment of his written‑statement to raise this plea and in the absence of any specific objection in the written‑statement, it will be presumed that the petitioner had waived the objection and tried to raise it through miscellaneous application for making‑up deficiency in the pleadings. Of course, if the written‑statement is amended with the permission of the Court at a later stage, to raise this question, there will be no bar in leading evidence to show that the presentation of promissory note was necessary or that the suit would suffer on account of non‑presentation. If any such situation would arise, the respondent will also be at liberty, to bring on record evidence to show that either presentation was not necessary or that the circumstances existed to bring the cases within exception clause or one of the situation visualized by section 76 of the Negotiable Instruments Act.

13. Be that at it may, at the present, none of the pre‑conditions for the rejection of the plaint was in existence and in view thereof the learned Additional District Judge did not commit any illegality or irregularity in dismissing the application. The order passed by the learned Additional District Judge does not suffer from any legal infirmity or jurisdictional error. In result, this revision petition being without substance and lacking merit, is dismissed, with no order as to costs. A.A./N‑89/L Revision dismissed.