1989SCMR1692 (PLP)

JUSTICE MUHAMMAD AFZAL ZULLAH (CHAIRMAN).‑‑This appeal under Article 203‑F of the Constitution is directed against judgment dated 5‑11‑1983 of the Federal Shariat Court; whereby in suo motu exercise of power under Article 203‑D of the Constitution, Sections 61, 62 and 64 of the Negotiablc Instruments Act (No. XXVI of 1881), were held to be repugnant to the Injunctions of Islam. The following direction accordingly was made in the impugned judgment. "The provisions of sections 61, 62 and 04 about the liability ceasing on non‑presentment are required to be omitted and it is further required that a section may be added to clarify that where the suit is filed without presentment and the defendant admits his liability thereto, the plaintiff will not be awarded the costs of the suit and on the other hand will reimburse the defendant for his costs as may be assessed by the Court."

2. The discussion by the learned Judge in the impugned judgment for rendering that verdict is as follows: "Chapter V about presentment of instrument provides for certain formalities. It provides that presentment to a person with a view to demand payment of the amount in the negotiable instrument should be made within a reasonable time and in business hours on a business day (sections 61 and 62); the holder of the instrument must allow the drawee 48 hours to consider whether he will accept it (section 63), the presentment must be made by or on behalf of the holder (section 64), it must be made during the usual hours of business and if at a banker's, within banking hours (section 65). A promissory note or bill of exchange, made payable at a specified period after date or sight thereof, must be presented for payment at maturity (section 66). It must be presented at the place specified if any such place is specified (sections 68 and 69) and in other cases at the place of business if it is known or at the ordinary residence (if known), of the maker, drawee or acceptor thereof, as the case may be, (section 70) and in other cases to him in person wherever he can be found (section 71). In default of such presentment, no party thereto is liable thereon to the person making default or to the holder (sections 61, 62 and 64). Section 76, however provides for cases in which the presentment is unnecessary. It is as follows: "No presentment for payment is necessary, and the instrument shall be deemed to be dishonored at the due date for presentment, in any of the following cases:‑ (a) if the maker drawee or acceptor intentionally prevents the presentment of the instrument, or; if the instrument being payable at his place of business, he closes such place on a business day during the usual business hours, or, if the instrument being payable at some other specified place, neither he nor any person authorized to pay it attends at such place during the usual business hours, or; if the instrument not being payable at any specified place, he cannot after due search be found; (b) as against any party sought to be charged therewith, if he has engaged to pay notwithstanding non‑presentment. (c) as against any party if, after maturity, with knowledge that the instrument has not been presented, he makes a part payment on account of the amount due on the instrument, or promises to pay the amount due thereon in whole or in part, or otherwise waives his right to take advantage of any default ill presentment for payment; (d) as against the drawer, if the drawer could not suffer damage from the want of such presentment; (e) where the drawee is a fictitious person; (f) as regards an indorser, where the negotiable instrument was made drawn or accepted for the accommodation of that indorser and he had reasons to expect that the instrument would not be paid if presented; and (g) where, after the exercise of reasonable diligence, presentment as required by this Act cannot be effected. In cases other than those numerated under Section 76 the principle is that where presentment is proved by the plaintiff he is entitled to a decree since dishonour is an essential part of the cause of action. Such decree cannot be passed in cases falling under sections 61, 62 and 64 of the Act unless presentment of the instrument is made on the debtor. This is too stringent a provision because the emphasis in this case is on the form rather than on the substance. It is well- known that emphasis on form was allowed by the Roman Law and in suits the plaintiff had to bring his case within the four corners of any particular form in the absence of which he could not succeed. Formalism in procedure, in interpretation and even substantive law is inherited by the common law of England from the Roman Law. This will be clear from an example in Jurisprudence by Roscoe Pound, Vol. I‑page 385‑6: "1n procedure an example is to be seen in the doctrine of plus partition. In Roman Law if the plaintiff in his intentio (i.e. settlement of claims) claimed more than he proved to be entitled to, he lost the whole. Compare with this the common law action for debt. Blackstone says: `In an. action of debt plaintiff must prove the whole debt he claims or recover nothing at all. So. it was if he proved too much. If he claimed twenty shillings and proved a debt of twenty‑one, the judgment went against him. Aristotle tells us the same story of Greek procedure. If one sued for twenty minae and proved eighteen there had to be a judgment for the defendant. Hippopodamus of Miletus, a writer on politics of the fifth Century B.C. objected to this rule and proposed that alongwith a finding for or against the plaintiff a third course should be open to the letters, namely to find for the plaintiff a part of claim. Aristotle pronounced such a proposition inadmissible because it would convert the truer into an arbitrator. He could sec no means between a rigid rule which restricted the finding to a mere yes or no upon the letter of the claim and the turning justice without law. The doctrine grew immediately from the exigencies of mechanical modes of trial. In Roman Law there was the further difficulty of the so‑called procedural contract. The plaintiffs claim was merged in the contract to submit a defined issue. If he did not prove that exact issue, all his claim was gone." It has been noticed that the common law principle was not different. The rigidity of the common law in respect of cause of action can be elucidated by another reference, that is "For the debt is one single cause of action, fixed and, determined; and which therefore, if the proof varies from the claim cannot be looked upon as the same contract whereof the performance is sued for."

4. The Our an and the Sunnah has always insisted upon substantial justice free from any formalism. In none of the traditions of the Holy Prophet (p.b.u.h.) can we find even one example of formalism. The jurists laid down different formal expressions for a contract but they seldom insisted upon their enforcement. They were laid down only for the purpose of guidance. According to Muslim jurists in a claim for twenty Deenars, if the proof be in favour of eighteen only, the lesser amount can be decreed. (Durrul Mukhtar Vol. 111, p.314; Urdu Translation, Vol.3, p. 319). Though according to the Code of Civil Procedure, 1908 a decree for the lesser amount can be passed if the proof for the entire claim be not forthcoming but in many laws enforced in the sub‑continent the insistence on formalism had crept through. Thus it was provided that certain suits which require to be filed after due notice to the defendant must be dismissed if not filed after due notice. One such instance was a suit against the Government which could not have been filed without two months' notice after the cause of action matured. Now this rigour is relaxed by the provision that the suit can be filed but the defendant will not be liable for the plaintiff's costs. Similarly it was insisted that a suit in which cause of action has not arisen must be dismissed as premature even though the same may mature during the pendency of the suit. The rigidity of this principle was softened by the Courts in the twentieth century. The principle now is that where a suit is filed without maturity of cause of action and the same matures during the pendency of the suit the suit may be held to have been competently filed after such maturity. Sometimes the filing of suit itself has been held to be notice to the defendant where such notice was required to be given before the filing of the suit. Under the dissolution of Muslim Marriages Act a suit for such dissolution can be filed by a girl who was married during her minority after she acquires the age of fifteen years provided that she repudiates the marriage before reaching the age of eighteen years. The Courts have held that filing of the suit itself amounts to repudiation. The presentment is required only to give an opportunity to the party liable to pay, either to make payment or to dishonour the instrument in which case the right to sue accrues. Same result can follow if a suit is filed without presentment where such presentment is necessary. If the defendant on appearance admits his liability and allows the decree to be passed, the plaintiff should not be awarded the cost of the suit. On the other hand he may be liable to pay the costs actually incurred by the defendant. But if the defendant contests his liability it will be as good as he has dishonoured the instruments and is not entitled to exemption from payment of cost."

5. Learned Deputy Attorney‑General has contended: firstly that the concerned provisions relate to banking practice and procedure, therefore, it did not fall within the definition of law as contained in Article 203‑B(C), accordingly the Federal Shariat Court lacked jurisdiction in the matter, Secondly, he contended that the impugned part of the judgment does not satisfy the rule laid down by this Court in Pakistan v. Public‑at‑Large (P L D 1986 S C 240) with regard to the reasons in support of the judgment which should have contained the relevant references to the Injunction of Islam. 1696 The first contention of the learned counsel finds support from the! observation of the Federal Shariat Court at page 48 of the impugned judgment to effect that 'The negotiable instruments dealt with in the Act are inter alia the important banking documents and may broadly fall into two different .."After making this observation the learned Judges did not take note of heads the possible objection regarding bar of jurisdiction brought to our notice by the learned counsel. Even, on prima facie consideration, it is not without force. The second point also is not without force. Two main considerations regarding Islamic injunctions which weighed with the learned Court, are: One, that "the Qur'an and the Sunnah has always insisted upon substantial justice free from any formalism. In none of the traditions of the Holy Prophet can we find even one example of formalism"; and two, that the jurists did not insist upon the formal expressions for a contract. For example, a claim for 20 deenars could be granted to the extent of 18 deenars, if the proof was only to the extent. A reference in Durrul Mukhtar was cited in this behalf. With respect, the specific provisions contained in the injunction of the Holy Qur'an regarding contract and other laws relating to, for example, those in contract of marriage and incidence of Talaq and other contractual relationships were neither referred nor discussed. This as held in the case relied upon by the learned Deputy Attorney‑General does not satisfy the requirement of the Constitutional mandate. We therefore, have no alternative but to allow this appeal and set aside that part of the impugned judgment which relates to Sections 61, 62 and 64 of the Negotiable Instruments Act, 1881.

6. With regard to the remaining provisions of the Act similar valid‑1 objections may be available against the impugned judgment, but there is no appeal before us in that behalf. Be that as it may, in the light of the foregoing discussion, there will be no bar of res judicata on the Federal Shariat Court re‑examining the questions involved in the impugned judgment, both with a view to see whether the subject matter fell within the jurisdiction of the Federal Shariat Court; and whether any of the provisions of the Act are repugnant to the Injunctions of Islam. With these observations this appeal is thus allowed with no order as to costs. Order accordingly. M.A.K./F‑120/S