2008 PLP 1114 (CLD)

MAULVI ANWARUL HAQ, J.

On 31-5-2006 the appellant filed a suit against the respondent for recovery of Rs.2,16,000 under Order XXXVII. C.P.C. According to the plaint the parties reside in the same village and have good relationship. In December, 2004 on the request of the respondent the said amount was lent to him. The receipt was acknowledged and pro note was executed on 23-12-2004 by respondent promising to repay the amount on demand. The amount was not so paid when demanded. A decree was accordingly prayed for. The respondent was duly served in the manner prescribed. He put in appearance and filed an application for leave to appear and defend the suit. The leave was granted vide order dated 10-7-2006. A written statement was filed on 12-8-2006. The plea taken was that the respondent is an illiterate person and cannot even sign his name. He requested the appellant to assist him in the matter of obtaining N.I.C. and his thumb-impressions were obtained on some papers and later the pro note and receipt were fabricated. According to him he had not received any amount from the appellant. Following issues were framed on 20-9-2006:-- (1) Has the plaintiff no cause of action? OPD (2) Are the pro note and receipt outcome of fraud, forgery and deceit, if so, how? OPD (3) Whether the plaintiff is entitled to recover the amount of Rs.2,16,000 on the basis of pro note and receipt dated 23-12-2006? OPP (4) Relief. Evidence of the parties was recorded. To the misfortune of the appellant whereas the statement of the appellant as P.W. 1 and the attesting witnesses Faiz Ahmed and Sikandar Ali, P.Ws.2 and 3 were recorded with reference to execution of the pro note and receipt, somehow or the other document was not put to the witnesses and as such it was not exhibited. I find a note appended to the statement that the statements of the witnesses were recorded on the dictation either by Reader or Alhmad of the Court. Be that as it may, the omission came to be noticed and an application was filed for exhibition of the documents. It was replied. The case was being adjourned for arguments on the said application when on 22-1-2008 the learned Additional District Judge, Okara ordered the return of the plaint as according to him pro note is attested by two witnesses and as such attained status of bond and no more negotiable instrument. He relied on the case of Abdul Rauf v. Farooq Ahmed and another PLD 2007 Lahore 114.

2. Learned counsel for the appellant contends that the impugned order is against law. He has relied upon the cases of Muhammad Ashiq v. Rana Tariq Mahmood 2006 CLD 865 D.B. and Muhammad Zafar v. Dr. Jehan Ara Ahmad 2002 CLD

257. The respondent was personally served in this F.A.O. He put in appearance on 21-5-2008 and requested for adjournment to engage a learned counsel. The case was accordingly fixed for today in his presence. The case has been repeatedly called. The respondent or any one on his behalf has not turned up. He is accordingly proceeded against ex parte.

3. The records of the learned trial Court have been examined. The pro note and receipts printed on a single document are present at pages 55 and 56 of the trial Court file. These are dated 23-12-2004. The pro note narrates that a sum of Rs.2,16,000 has been borrowed and it will be paid on demand of the appellant to him or his order.

4. It is true that it has been observed in the said case of Abdul Rauf relied upon by the learned Additional District Judge, that according to provision of section 2(5)(b) of the Stamp Act, 1899, if an instrument, which otherwise might be a promissory note, but if attested by witnesses, the same attained, legal status of a bond and no more remained a negotiable instrument. However, this observation is in relation to the document examined by their lordships. Apart from the fact that learned Division Bench of this Court took a different view and as held in the case of Sh. Muhammad Zafar cited by the learned counsel, i.e. mere signing of promissory note by witnesses will not change its nature nor will it lose its significance as negotiable instrument, the document present on the trial Court file is a pro note and by no means a bond within the meaning of section (5)(b) of the Stamp Act, 1899, whereby any instrument attested by a witness and not payable to order or bearer, whereby a person obliges himself to pay money to another is included in the term "bond". As noted by me above, the pro note in the present case does specify that it shall be payable to the appellant or to his order. This being so, the most important condition prescribed in section 2(5)(b) of the Stamp Act, 1899 is non-existent. On the other hand, pro note fulfils all the four conditions prescribed by law i.e. section 2(20) of the Stamp Act 1899 read with section 4 of Negotiable Instruments Act, 1881. Both these provisions define a pro note. The pro note relied upon by the appellant contain unconditional undertaking to pay a certain amount to or to the order of the appellant and his thumb-marked by the appellant, who is maker of the pro note. The document in question, therefore, by all means is a pro note and as such negotiable instrument within the meaning of Order XXXXVII, C.P.C. The F.A.O. is accordingly allowed. The impugned order dated 22-1-2008 of the learned Additional District Judge, Okara is set aside. The result would be that the suit filed by the appellant shall be deemed to be pending. He shall appear before the learned District Judge, Okara, on 2-9-2008. The record shall be immediately remitted to the learned District Judge, Okara with a copy of this judgment. He shall summon the respondent/defendant and proceed further from the stage whereby proceedings were on the said date. No order as to costs. S.A.K./A-77/L Appeal accepted.