1999 PLP 1934 (YLR)

(4) What should the decree be?

5. On 11‑3‑1996, the respondent/plaintiff led his evidence, beside himself, examined, witnesses to the transaction relating to pronote, all the witnesses were cross‑examined by the applicant/defendant.

6. The applicant, instead of leading his evidence chose to file an application under Order VII, Rule 11, C.P.C., for the rejection of plaint inter alia on the ground that original pronote was not filed with the plaint, and photo copy annexed with plaint was undated and same having been filled in subsequently, thereby committed forgery and introduced material alteration rendering suit liable to be dismissed.

7. The learned trial Court, vide detailed order, dated 3‑7‑1996, dismissed the said application holding that, the grounds urged in the application, a clear issue No.3, referred to above, is already framed.

8. The applicant/ defendant, despite opportunity chose not to lead any evidence, his side was closed on 10‑9‑1996. He did not move the trial Court for recall of such order, consequently after arguments suit was decreed on 19‑8‑1997. The applicant/defendant did not prefer any appeal, but chose to file an application under section 12(2), C.P.C. on 8‑1‑1998, which application was dismissed by the learned trial Court vide speaking order, dated 11‑5‑1998, against this order also, the applicant chose to remain quite and did not prefer any appeal.

9. There being no legal impediment in the way of the. Executing Court, the Execution Application referred to, in the earlier part of the order was allowed vide order, dated 15‑1‑1998 and the Executing Court issued writ of attachment.

10. The order granting Execution Application has been impugned in this Revision Application, inter alia raising same pleas and grounds, as were urged in written statement, application under Order VII, Rule 11, C.P.C., and application under section 12(2). C.P.C.

11. Learned counsel for the applicant contended firstly that original promissory note was not filed, secondly that promissory note was filled in subsequently, that has materially altered the pronote which illegalities it was vehemently argued, rendered the entire proceeding nullity. Reliance was placed on PLD 1965 SC 690, AIR 1947 Nag. 145, AIR 1936 Rangoon 136 and 1994 SCMR 568 and definitions of material alteration from Ballentine Law Dictionary.

12. Learned counsel for the respondent argued that judgment, dated 19‑8‑1997 passed by the learned trial Court was not challenged and same has attained finality. It was further countered that judgment and decree was further endorsed by orders, dated 11‑5‑1998 passed on application under section 12(2), C.P.C. which order was also not challenged, and questioned the very maintainability of revisions application.

13. Adverting to the first contention of the learned counsel for the applicant, that suit on the basis of photo copy of pronote is not maintainable in support of his contention he relied upon the case reported as State v. Muhammad Abdullah 1982 Cr.LJ 658 contention of the applicant's counsel is not tenable, no doubt the photo copy of pronote was filed alongwith suit, but, subsequently on the application under Order 16, Rule 1, C.P.C., filed by the respondent, same was allowed to be produced by the trial Court, and same was also produced in evidence and no question as to denying or disputing the signature of the applicant and as to alleged material alterations were put nor the veracity of the same was challenged. Specific issue as to maintainability was framed by the learned trial Court, which was decided against the applicant, an objection which cannot be agitated before the Executing Court, cannot be allowed to be raised in revision application.

14. The case of State v. Abdullah (1982 PCr.LJ 658) is not at all relevant, as in that case photo copy was sought to be relied in support of claim without producing original for comparison, whereas, in the instant case original of pronote was produced in evidence.

15. Adverting to the second contention of the applicant that pronote was materially altered as to date, rendering it void.

16. Applicant argued that alongwith the plaint in suit, the respondent filed the photo copy of pronote which was undated, and later on date was endorsed, which caused material alteration rendering instrument void and suit not maintainable, when the applicant was confronted with section 20 of the Negotiable Instruments Act, 1881 (The Act) which gives statutory authority to a person holding it to complete it into a negotiable instrument, the learned counsel responded that putting date subsequently in fact amounted to material alteration in terms of section 3(f) of the Act which entail consequences provided under section 87, rendering the same void. He also referred to the definition of material alteration as contained in Ballentine Law Dictionary.

17. In order to appreciate the contention of learned counsel for the applicant definition of material alteration as contained in section 3(f) of the Act, is reproduced as under:‑‑ " ' material alteration' in relation to promissory note, bill of exchange or cheque includes an alteration of the date, the same payable, the time of payment, the pace of payment, and, where any such instrument has been accepted generally, the addition of a place, of payment without the acceptor's assent." and section 87 of the Act 1881 reads as follows:‑‑ "Any material alteration of a negotiable instrument renders the same void as against any one who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties. "

18. It is to be noted that the words "material alteration", are not defined in the Act, but in the definition clause with reference to negotiable instrument said words are followed by "include", which has an effect of enlarging the scope of the already understood meaning of the words. As such, "material alteration" as defined in the Legal Dictionary would be relevant. Ballentine Law Dictionary defines material alteration as:‑‑ "A change in the terms of a written instrument which gives it a legal effect different from that which it originally had. An intentional act performed upon an instrument after it has been fully executed, by one of the parties thereto without the consent of the other, which changes the legal effect of the instrument in any respect. An alteration of an instrument which destroys the identity of the instrument or of the contract evidenced thereby, or which so changes its terms as to give it different legal effect from that which it originally had, and thus works some change in the rights, obligations, interest, or relations of the party. The completion of an executed but incomplete instrument, in a manner other than is authorized, so as to change the contract". and in Black's Law Dictionary it has been defined to mean: "A material alteration in any written instrument is one which changes its tenor, or its legal meaning and effect; one which causes it to speak a language different in effect from that which it originally spoke. A material alteration of a deed is one which effects a change in its legal effect. Any alteration of an instrument is material which changes the contract of any party thereto in any respect, including any such change in: (a) the number or relations of the parties; or (b) an incomplete instrument, by completing it otherwise than as authorized: or removing any part of it."

19. The definition clause 3(f) of the Act does not in fact define the word "material alteration", as stated above, but simple amplifies and extends the scope of the said words to take into its folds the change or alteration in relation to the date, sum payable, time and place of payment with reference to negotiable instrument.

20. From the above discussion it is clear that the words "material alteration" as used in the definition clause 3(f) and consequences whereof, as laid down in section 87 of the Act, means any material and substantial change, variation, modification, substitution, insertion, errasion, addition or alteration in the contents or body of the negotiable instrument including any alteration of date, the sum payable, the time and place of payment after its due execution which effect the rights, liabilities or legal position of a party.

21. In the light of the above discussion the arguments of the learned counsel for the applicant were considered, according to him, 'filling up' the subject promissory note which was blank as to 'date' amounts to material alteration and consequence whereof follows in section 87 of the Act rendering the instrument void.

22. In order to appreciate the contention of learned counsel for the applicant it will be advantageous to refer to section 20 of the Act which reads as under:‑‑ "Section

20. Inchoate stamped instrument.‑‑‑ (1) Where one person signs and delivers to another a paper stamped in accordance with the law relating to stamp duty chargeable on negotiable instruments, either wholly blank or having written thereon an incomplete negotiable instrument, in order that it may be made, or completed into a negotiable instrument he thereby gives prima facie authority to the person who receives that paper to make or complete it, as the case may be, into a negotiable instrument for the amount, if any specified, for any amount, not exceeding in either case, the amount covered by the stamp".

23. In view of section 20 of the Act, person who receives inchoate instrument has prima facie authority to fill up the blank and/ or to complete it into a negotiable instrument so as to enforce it against a person who has signed and executed the same, such statutory authority is to be exercised within reasonable time. If any reference is needed one may find the same in PLD 1986 Kar. 464, PLD 1989 Kar. 150, 1983 CLC 1297. As such, if a person in exercise of statutory authority as conferred by section 20 of the Act fills up any blank or completes any inchoate instrument in order to enforce it, same will not amount to "material alteration" within the meaning of the words a5 laid down in the Act as such, would not attract the consequences as provided in section 87 of the Act.

24. In the instant case, apparently the date was filled up later on, to which no exception under circumstances can be taken, particularly when the applicant/defendant had two opportunities to agitate the findings of the Court below in appeal firstly, when final judgment, dated 29‑8‑1987 decreeing the suit was passed and, secondly, when the application under section 12(2), C.P.C. was dismissed on 11‑5‑1998 and on both these occasions the findings were against the applicant, even otherwise, the applicant has failed to show that the Executing Court has failed to exercise the jurisdiction or has transgressed the jurisdiction and/or exercise of jurisdiction so vested is visited by illegality or material irregularity. The applicant cannot be allowed to assail the judgment and decree in suit and/or order on application under section 12(2), C.P.C. indirectly through instant revision application, which is even otherwise not maintainable.

25. The Revision Application having no merits and so also the listed C.M.A. No.259 of 1999 are dismissed with costs. Q.M.H./M.A.K./A‑339/K Revision dismissed.