P L D 2007 Lahore 111 (PLP)

SYED ZAHID HUSSAIN, J.

It is litigation inter se the two brothers, which commenced with the institution of a suit for recovery of Rs.1-lac under Order XXXVII of the Code of Civil Procedure, 1908. The suit was filed by the respondent in the Court of learned District Judge, Lahore, which was entrusted to a learned Additional District Judge, Lahore who granted leave to defend conditionally on 30-5-1992. It remained in that Court till 9-1-1993. On the said date (9-1-1993) the file was sent by the learned Additional District Judge to the Court of Mr. Fazal Zada, Civil Judge, Lahore in view of the some order of the learned District Judge, Lahore. Further proceedings then were conducted by the learned Civil Judge who dismissed the suit on 4-5-1995. Appeal preferred thereagainst was however accepted by a learned Additional District Judge, Lahore on 14-4-1999 and the suit was decreed. This is second appeal by the defendant qua the judgment of the learned appellate Court. On the last date of hearing it was brought to the notice of the Court that since the suit had been filed under Order XXXVII of the Code of Civil Procedure, 1908 on the basis of a negotiable instrument i.e. promissory note, the legality of the proceedings and judgments rendered by the Courts required examination. Admittedly the suit was based on a negotiable instrument and was filed as such under Order XXXVII of the Code of Civil Procedure, 1908 by presenting the plaint before the learned District Judge, Lahore. It was initially being tried by a learned Additional District Judge, Lahore and purports to have been transferred later on to the Civil Judge on 9-1-1993 who framed the issues and conducted further proceedings therein. The file however does not contain any such order passed by the learned District Judge, Lahore transferring the suit to Civil Judge. Since the learned Additional District Judge, had made reference to such an order of learned District Judge, Lahore, despite efforts made to discover any such order of District Judge, none could be traced. The basis or justification for the transfer of the suit by the learned Additional District Judge becomes questionable. The learned counsel for the parties have cited Sh. Abdul Majid v. Syed Akhtar Hussain Zaidi (PLD 1988 SC 124) and Messrs Sh. Siraj & Company and another v. Habib Bank Ltd., Lahore (1969 SCMR 784). The provisions of Order XXXVII of the Code of Civil Procedure, 1908 which are of special nature deal with such suits based on negotiable instruments. Rule 1 thereof reads as follows:-- "Rule-1 Application of Order. This order shall apply only to the High Court, to the District Court, and to any other Civil Court especially notified in this behalf by the High Court". Since the history, background and various amendments made from time to time in the abovementioned provisions of Order XXXVII of the Code of Civil Procedure, 1908 have been elaborately noted and discussed in Abdul Majeed's case (Supra), I need not reiterate the same except making of reference to passage from the said judgments. "The decision of this Court in Siraj and Company clearly indicated that where the procedure under Order XXXVII was being claimed by a plaintiff and was not available the trial Court could proceed with the case as an ordinary suit. The High Court has not indicated any jurisdictional or procedural bar to it while determining that the decision of this Court in Siraj Din's case was obiter. In Muhammad Abdullah Sufi v. Messrs Muhammad Bux and Sons and others PLD 1957 (W.P.) Karachi 445 the view taken was that where a suit was not triable by resort to the procedure prescribed in Order XXXVII, its trial could proceed as an ordinary suit. The law laid down by this Court was clearly attracted. As regards the contention of the learned counsel for the respondent that the rule introduced by the amendment by the Lahore High Court touched the jurisdiction and was in excess of its powers possessed under section 128 read with section 122, C.P.C. is clearly untenable. Order XXXVII relates to the procedure and not the jurisdiction. The amendments introduced by the High Court only identified the Courts where resort can be had to Order XXXVII for the purpose of trial of a suit of a particular category." The instant, however, is a unique case which was being tried by the learned Additional District Judge who sent it to the Court of learned Civil Judge with reference to some order of the learned District Judge. It is a vague order which does not make mention of even the date of order of learned District Judge. As mentioned above the case file does not have any such order of learned District Judge, and none found even otherwise. Since the very basis of transmission of suit to Civil Judge is missing, the proceedings conducted by that Court as also the consequential judgments on a mistaken assumption lose legal efficacy. The suit filed by the respondent thus need to be tried by the learned Additional District Judge from the stage onward when he passed order dated 9-1-1993. In view of the above setting aside judgments of both the Courts the suit file is remitted to the learned District Judge, Lahore for its entrustment to the successor of the then Additional District Judge, Lahore (on 9-1-1993) for further proceedings in accordance with law. The appeal is accepted and disposed of in the above terms. No order as to costs. S.M.B./M-591/L Appeal accepte