SH. HAKIM ALI, J. --- Though this civil revision, an interesting question of material importance has been posed for adjudication. The facts which have led to the filing of this civil revision, with brevity, can be narrated as under:- Respondent, namely, Syed Tasneem Nawaz Gardezi had filed a suit under Order XXXVII, Rules 1 and 2 of the C.P.C., for recovery of Rs. 55,04,000/- on the basis of Cheque No. 122836, CA-50./A, drawn on Muslim Commercial Bank, Rahimabad Branch, Tehsil Sadiqabad, against Shafiq Hyder Leghari.
Defendant/ petitioner, in the Court of learned Additional District Judge, Sadiqabad. According to the contents of the plaint , copy of cheque was also appended with the plaint while upon original cheque the reliance was placed on it by filing a list of reliance. The defendant was allowed leave and had submitted his written statement on 14.5.2004, in which he had pleaded that the cheque was issued in favour of plaintiff as guarantee with regard to some transactions of lands. Before the commencement of evidence of the plaintiff, an application, was moved by the plaintiff for grant of permission to produce secondary evidence with regard to the above-noted cheque, as the plaintiff had fallen prey to a dacoity committed upon him while he was proceeding from Multan to Lahore and, an F.I.R. No. 162/2002 was also lodged by him with Police Station, City Renala Khurd, District Sheikhupura. According to the application, the original cheque and memo/slip were in the brief case of the plaintiff, which was looted alongwith net cash, licensed pistol and vehicle. The learned Additional District Judge, after hearing the arguments upon the application, allowed the plaintiff on 23.5.2005 to produce secondary evidence. When the defendant found this clue of original cheque having been stolen away from the possession of the plaintiff, he filed an application on 17.9.2005 under Order VII, Rule 11 of the C.P.C. For rejection of the plaint. This petition was contested and the learned Additional District Judge on 21.11.2005 dismissed the application filed by the defendant under Order VII, Rule 11 of the C.P.C. Considering the order dated 21.11.2005 having been passed illegally, instant revision petition has been filed by the defendant.
2. Learned counsel appearing on behalf of the petitioner submits that a suit based upon negotiable instrument under Order XXXVII, Rules 1 and 2 of the C.P.C. Cannot be instituted when an original negotiable instrument is not in possession of the plaintiff or it has not been produced alongwith the plaint. In such an event, according to the learned counsel, the ordinary suit could be instituted by the plaintiff. The present suit with extraordinary procedure under Order XXXVII of the C.P.C. Was not maintainable and the order passed by the learned Additional District Judge dismissing the petition under Order VII, Rule 11 of the C.P.C. Has been passed with material irregularity, illegality and in excess of jurisdiction. To support his contention that the suit is not maintainable, learned counsel has referred to 2005 CLC 797 (Kamran Akhtar v. Jawed Ahmad Khan), PLD 1988 SC 124 (Sh. Abdul 'Majid v. Syed Akhtar Hussain Zaidi), PLD. 1988 Lahore 424 (United Bank Ltd., Mianwali v. Muhammad Khan and another) and AIR 1940 Lahore 329 (Bharpura v, Diwan Chand).
3. After considering the arguments of the learned counsel and examining the decisions referred to by the learned counsel as well'as the record, before proceeding to decide the civil revision it would be necessary for proper adjudication to reproduce wordings of relevant portion of Order XXXVII, Rule 2(1) of the C.P.C. For ready reference:- "2, Institution of summary wits upon bills of .Exchange, etc. (1) All suits upon bills of exchange, hundies or 'promissory notes, may, in case the plaintiff desires to proceed hereunder, be instituted by presenting a plaint in the form prescribed; but the summons shall be in Form No. 4 in Appendix B' or in such other form as may be formed time to time prescribed."
The .Material words in the above-noted sub-rule worth consideration are "All suits upon bills of exchange, hundies or promissory notes". While interpreting these words, it cannot be held that suit which is based on any photo copy of admissible pronote or founded upon the lost original negotiable instrument are not entertainable. It cannot be held that a suit based upon a negotiable instrument, the original of which has lost cannot be instituted under Order XXXVII of the C.P.C. Or it would not be a suit constructed, upon a negotiable instrument. If the pronote cheque/hundi or any other kind of negotiable instrument in original form is not available, has been destroyed, misplaced, damaged or lost, it would not be called suit having not been instituted on the basis of negotiable instrument. It would still be a suit based upon the negotiable instrument. Loss of an original pronote or inadmissibility of negotiable instrument cannot be made a ground for the rejection of plaint. The loss of original negotiable instrument at the most would be matter with regard to the realm of production of evidence. It would be raising they question of admissibility or its inadmissibility at the stage of recording of the evidence, not barring the institution of suit. In case, a negotiable instrument becomes inadmissible or not liable to be admitted into evidence due to some reason, the party in such an evident can turn to its original consideration if that course is permitted by law in a given case. In the instant case, the defendant/petitioner in his written statement has admitted the execution of cheque but has asserted and pleaded that it was issued as a guarantee. So, the existence/issuance/execution of the original cheque has been admitted. In these circumstances, the case cannot be thrown away and the plaintiff cannot be referred to proceed in a Civil Court with ordinary procedure and jurisdiction. The suit in such an event shall be considered to have been founded upon the negotiable instrument. It is a procedural matter of the suit, during the proceedings of a suit, in which it has to be considered, as to how the document (negotiable instrument) has to be proved. In other words, the suit shall retain its nature to have been based upon negotiable instrument but the procedure for proof would be determined and different, in accordance with the Qanun-e-Shahadat Order of 1984, through the secondary evidence when a negotiable instrument is lost, destroyed or misplaced. Therefore, relying upon the words used by my learned brother Mr. Justice Muhammad Asadullah in a judgment delivered in a D.B. Case, reported in PLD 1988 Lahore 424 (United Bank Ltd., Mianwali v. Muhammad Khan and another); relevant at page 427 "Its first three words "all suits upon" are very important. The said words mean that a suit based on a pronote can be filed under Order XXXVII, C.P.C. And can be dealt with thereunder.
However, the said rule does not say that it should be on a pronote which is valid according to law or which has been executed according to law or which is admissible in evidence according to law.'
Similarly it, does not say that the suit cannot proceed on any other evidence apart from the concerned pronote.", / also concur with the view expressed and decision delivered by the afore- mentioned Hon'ble Division Bench that the suit would remain to be founded on a pronote even if negotiable instrument is invalid according to law, is inadmissible in evidence or has been executed or not, according to law of the land, or requires proof through primary or secondary evidence.
4. As regards citation 2005 CLC 797 (Kamran Akhter v. Javed Ahmad Khan), that was a case wherein a cheque was presented after six months and it was held that it was a stale cheque and was returned by the bank, which plea has not been raised in the instant case. Therefore, that decision is not applicable to the present case. In PLD 1988 SC 124 (Sh. Abdul Majid v. Syed Akhtar Hussain Zaidi), it was held by the Hon'ble Supreme Court that when procedure under Order XXXVII, C.P.C. Is not available then the, suit can proceed as an ordinary suit. In AIR 1940 Lahore 329 (Bharpura v. Diwan Chand) it was held that when the suit upon original instrument had failed, the plaintiff could not be allowed to fall back by the original consideration, that decision has altogether decided a different proposition. Therefore, that case is also not applicable to the facts of the case.In hand. .5. Accordingly, the result of all the above-noted discussion is that suit which has already seen protracted litigation cannot be thrown out by accepting the petition under Order VII, Rule 11 of the C.P.C. The impugned order C.L.R. passed by the learned Additional District Judge is, therefore, upheld and the civil revision is dismissed in limine. .