SYED HAMID ALI SHAH, J.---The appellant through this appeal has called in question the judgment and decree dated 2-2-1999, passed by learned Additional District Judge, Sialkot, wherein the suit of the plaintiff was dismissed.
2. The appellant asserted in his plaint that the respondent persuaded the plaintiff to abstain from pursuing R.F.A No.382 of 1990 titled "Main Iqbal Hussain v. Rasheed ur Rehman" and in this respect entered into oral agreement with the appellant. The appellant agreed to forego his right of appeal against consideration of payment of Rs.10,00,000. A sum of Rs.3,50,000 was paid in cash and for the balance amount of Rs.6,50,000 the respondent executed a promissory note. The suit under Order XXXVII, Rule 2 was filed, on refusal of the respondent to pay the amount subject-matter of the promissory note, on 6-6-1996. The respondent sought unconditional leave to defend the suit, by fling application within the stipulated period of 10 days. Leave to appear and defend the suit, was granted on 5-11-1996 and written statement was filed by the respondent, who raised number of preliminary objections and controverted the averments of the plaint. The following issues, out of divergent pleading of the parties, were framed as under:-- "(1) Whether the plaintiff is estopped by his words and conduct to institute the present suit? OPD
(2) Whether the plaintiff has got no cause of action and locus standi to institute the present suit?
OPD
(3) Whether the defendant executed the promissory note dated 24-6-1993, in favour of the plaintiff with his free-will and consent? OPP (3-A) Whether the suit is not maintainable in its present form? OPD (3-B) Whether this Court lacks jurisdiction to hear this case? OPD
(4) Relief."
The parties led their respective evidence and the learned trial Court after hearing the parties and perusing the record dismissed the suit vide impugned judgment and decree dated 2-2-1999, hence present appeal by the appellant/plaintiff.
3. Learned counsel for the appellant contended that the promissory note (Exh.P.1), has admittedly been executed and signed by the parties, the document is unchallenged and its execution was never denied, therefore, the suit was liable to be decreed. The learned Additional District Judge, when came to the conclusion that document (Exh.P-1) being conditional is not a promissory note, was to treat it as a simple suit and return the plaint for it's presentation to proper Court. The suit was wrongly dismissed. The finding of the trial Court on of her issues were erroneous and illegal.
The appellant's learned counsel placed reliance on the judgment in the cases of Mrs. Doreen Barkat Ram v. Abdul Hakim Khan 1974 SCMR 84 and Muhammad Yousaf v. Abdul Majid PLD 1993 Lahore 244 to contend that claim based on negotiable instruments, the plaintiff is under no obligation to prove consideration if i he execution of instrument is not denied. He has further placed reliance on the judgment in the case of Muhammad Rafique v. Muhammad Nawaz 2001 CLC 318 to contend that heading given in the title of the document has no relevance, the contents of the documents are to be read, to bring the documents within the definition of promissory note.
4. Learned counsel for the respondent on the other hand, referred to section 4 of the Negotiable Instruments Act (XXVI of 1881) which provides that promissory note has to be unconditional undertaking, which is not so in the present case, as condition of foregoing the right in appeal are attached to it. He added further that even the condition of pronote was not fulfilled and appellant instead of foregoing the right of appeal, pursued it with vigour and sought a stay order. Learned counsel has placed reliance on the judgment in the case of Bherulal v. Ram Rikh AIR (38) 1951 Ajmer 71 in support of his contention that there are two tests of deficient from promissory note from an agreement, firstly, the intention of the parties at the time of document and secondly, the document as drawn out , can be said to be negotiable, i.e. to say could a third person file a suit on the strength of this document. He stressed that none of the two tests fulfilled the above criteria to conclude that the document, subject-matter of the suit, is a promissory note.
5. We have heard learned counsel for the parties and perused the material available on the record.
6. The impugned document (Exh.P-1), the execution whereof, has been admitted by the respondent but promise to pay the sum mentioned in the document, is subject to foregoing the rights of Appeal No.382 of 1990. The undertaking to pay in the said document is conditional and the learned trial Court has rightly held that document is not covered within the definition of promissory note as, contemplated in sections 4 and 13 of the Negotiable Instruments Act WWI of 1881).
7. There is another aspect of the case, that admittedly a sum of Rs.10,00,000 was agreed to be paid, to forego the rights in appeal. The intention of the parties, that document (Exh.P-1) was executed, to cause restraint on respondent to pursue the appeal, is evident from the perusal of evidence which they adduced during the trial. The agreement in restraint of legal proceedings is void and suit is incompetent on such contracts. It will be advantageous to reproduce section 28 of the Contract Act, 1872, which reads as under:-- "Agreement in restraint of legal proceedings void.--Every agreement, by which any party thereto is restricted absolutely from enforcing his right under or in respect of any contract, by the usual proceedings in the ordinary Tribunals, or which limits the time within which he may thus enforce his rights, is void to that extent."
The language of section 28 of the Act is clear by itself, which means that an agreement which restricts a party to it, from enforcing his rights under or in respect of such contract by usual legal proceedings in the ordinary Tribunals of country, will to that extent be void unless protected by exceptions to section 28. The agreement (Exh.P-1) in present case is neither a promissory note nor a valid agreement. No suit on the basis of void agreement lies and the learned trial Court has rightly dismissed the suit.
8. For the foregoing reasons, we find no substance in this appeal which is dismissed accordingly, without any order as to costs.