' HAMID FAROOQ DURRANI, J.---The appellant was non-suited by the learned District Judge, Abbottabad through the impugned judgment/decree, dated 17-3-2003 while, inter alia, deciding the question of jurisdiction of the trial Court in the matter in negative.
2. The appellant/plaintiff filed a suit for recovery of Rs.10,00,000 with profit/interest at the rate of 18% per annum from 4-1-2001 till actual recovery of the decretal amount. The claim of the appellant was purportedly based on a promissory note executed on 4-11-2000 by the respondent/defendant in favor of the former. It was, inter alia, contained in the plaint that the parties to the suit entered into an Agreement regarding the purchase of rock phosphate. That the plaintiff had sold the aid commodity to some other persons as well from whom an amount of Rs.5,80,000 approximately, was receivable. The defendant/ respondent had promised to receive the said amount on behalf of the plaintiff/appellant and to pay the same to the latter. That the total amount or the purchases by defendant/respondent from plaintiff/appellant and the amount receivable, as stated above, accumulated to Rs.10,00,000. In order to secure the payment of said amount a promissory note was executed by the defendant/respondent. It was the denial on the part of defendant/respondent due to which the plaintiff/appellant was constrained to file the suit before the learned District Judge under the provisions of Order XXXVII, rule 2, C.P.C.
3. The defendant/respondent applied for grant of leave to defend the suit which was allowed on 29-5-2002, whereafter, the suit was proceeded with by the learned trial Court after framing of issues. The parties to the suit led their respective evidence while upon conclusion of the trial the learned Court was pleased to dismiss the suit. Aggrieved from the judgment and decree of the learned trial Court the plaintiff/ appellant filed the appeal in hand.
4. Learned counsel for the parties heard and requisitioned record totrial Court gone through with their assistance.
5. The contents of the plaint itself, while read 'in juxtaposition tothe Agreement Exh.DW I/P-1, would indicate that the parties to the suit were jointly carrying on a business of rock phosphate with the inclusion of one Solat Islam son of Wilayat Khan. The person last mentioned, however, was not arrayed as a party to the suit. The Agreement Exh.D.W.1/P-1 contained several conditions, the performance whereof provided the basis of claim for the amount of Rs.10,00,000 in order to make it receivable by the plaintiff. It was, inter alia, contained therein that the amount of Rs.5,80,000, promised by the defendant for payment to the plaintiff was subject to the acknowledgment of sum of Rs.2,66,666 by the defendant after receipt of its acknowledgement from an agent, namely, Aziz.
Pertinently, the said amount was lying with a 4th party and was originally receivable by Solat Islam.
The amount last mentioned formed a constituent of Rs.5,80,000 promised by the defendant through the Agreement. The condition No,6 of the Agreement further revealed that there was a promise for issuance of a promissory note for Rs.10,00,000 as security, by the defendant on account of the above as well as for the commodity being purchased by the defendant from the plaintiff.
Besides, condition No,13 provided that the defendant will pay, in any case, to the plaintiff a sum of Rs.80,000 every month and upon termination of the business the plaintiff would be paid a sum of Rs.50,000 per month in lieu of balance amount under the Agreement. Further, in case of balance amount exceeding Rs.10,00,000 a sum of Rs.80,000 per month would be paid to the plaintiff in addition to the amount exceeding Rs.10,00,000 in the above eventuality. It would be useful to refer to condition No,14 also wherein the lump sum amount of the Agreement was made payable only in the event of defendant purchasing rock phosphate from any other party instead of lifting the same from his own mines.
6. It is noticeable that the plaint was silent regarding the forenotedcondition mentioned in the Agreement Exh.D.W.1./P-1. It is also seen that Exh.P.W.3/2 was an affidavit, dated 8-11-2000 (after the making of Promissory Note) by the defendant acknowledging the payment of Rs.5,80,000 in favor of the plaintiff while Exh.P.W.2/2 is a similaracknowledgment, dated 10-11-2000 by Solat Islam in favor of the defendant. It is also a fact that a notice, dated 14-5-2001 was sent to the plaintiff by counsel of the defendant wherein the termination of Agreement, dated 4-11-2000 as well as winding up of partnership business was demanded. The written statement filed by defendant further reveals that a 'suit for termination of partnership was already pending between the parties before the learned Civil Judge-VI at the relevant time.
7. The facts, as available on record, undeniably suggest that there was a business relationship between the parties to the suit and the payment of amount, promised through the promissory note, dated 411-2000, was conditional upon various eventualities while the same was not, in fact, received by the defendant as a consideration of A promissory note. The admitted facts also reveal that there were allegations of non-performance of the terms of business Agreement by the parties thereto, against each other, whereas, for settlement of account and termination of partnership business a suit was pending trial before the competent Court.
8. The jurisdiction conferred upon the District Judge under Order XXXVII, C.P.C. Is in order to entertain all suits based upon negotiable instruments and to dispose of the same in a summary manner. In the instant case, the contents of the plaint and the evidence by the parties suggested that the suit was not directly founded on a negotiable instrument but the basis of the same was a business Agreement Exh.D.W.1/P-1. In such a situation, the provisions of section 118 of the Negotiable Instruments Act, 1881 were properly and correctly resorted to by the learned trial Court. The same provided a presumption of receipt of consideration by maker of a negotiable instrument if not proved to the contrary. In the matter in hand, there was no claim of receipt of consideration by the defendant from the plaintiff in connection with the promissory note in question. It was, therefore, for the plaintiff/appellant to have proved the same which though was established to the contrary in the light of different acknowledgements, receipts and affidavits executed by various parties. An important affidavit Exh.P.W.3/2 and acknowledgement Exh.P.W.2/2, both executed subsequent to the promissory note, further weakened the stance of the appellant for entertaining his suit under the provisions of Order XXXVII C.P.C. In the circumstances of the case, as gatherable through counter allegations in the pleadings and evidence of the parties, the proper remedy for the parties was to have the controversy settled through a regular suit which they had already resorted to.
9. In the light of the above, the learned trial Court rightly declined to exercise its jurisdiction to adjudicate upon the merits of the case anddismissed the suit of appellant on the point of jurisdiction after discussing threadbare the material available on record. The judgment/ decree of the learned trial Court, impugned through the instant appeal, does not merit interference by this Court in the given facts and circumstances. ,
10. The appeal in hand is, therefore, dismissed being meritless. The parties are, however, left to bear their respective costs.