/JUDGMENT ' MEHMOOD MAQBOOL BAJWA, J. --- Suit for recovery of rupees one million was instituted by the appellant against the respondent on/the base of demand promissory note under Order XXXVII of the Code of Civil Procedure 1908 (Act V of 1908) (hereinafter called "The Code") in which application for leave to appear and defend the suit was made by the respondent which though was allowed but subject to submission of surety bond. However, due to failure of the respondent to submit surety bond, order regarding grant of leave was withdrawn by a learned Additional District Judge, Renala Khurd on 9th of December, 2013 and while striking -off the defense of respondent, lis was fixed for ex-parte evidence of the appellant.
2. On 20th of December, 2013, an application under Order VII, Rule 10 of the Code was made by the respondent to return the plaint with the assertion that perusal of demand promissory note suggests that it was attested by the witnesses and as such, cannot considered Demand Promissory Note".
' In written reply, factual position though was not disputed but on legal premises, assertion was controverted. However, the contention of present appellant remained an unsuccessful attempt as the learned Additional District Judge, while allowing the application, issued direction to return the plaint to the appellant for presentation of same before the Civil Court through order dated 22 of February, 2014
3. Aggrieved by the said order, appellant has preferred present appeal assailing the legality of said order, inter alia. Contending that mere signing of the demand promissory note by the witnesses will not be sufficient to question the status of said instrument as demand promissory note Maintained that learned Trial Court mis-interpreted the provisions of law. Help was sought from the dictum laid down in "Muhammad Ashrq v. Rana Tariq Mahmood" (2006 Corporate Law Decisions 865), "Altaf Hussain Sajid v. Muhammad Ant (2008 Civil Law Cases 1489) and "Sardar Ali Muhammad Khan v.
Muhammad Ayyub" (2014 Corporate Law Decisions 193).
4. Anxious consideration has been given to the arguments advanced.
5. As referred earlier, it was not disputed by the learned counsel for the appellant that demand promissory note was attested by the witnesses. Due to attestation of the witnesses, learned Trial Court opined that the said instrument for all intents and purposes is a "bond" and as such, the suit on the base of bond is not maintainable under Order. XXXVII of the Code and the plaint should have been presented before the Civil Court for recovery of amount
6. Matter came up for adjudication before the learned Division Bench of this Court in 'Abdul Rauf v.
Farooq Ahmed and another' (PLD 2007 Lahore 114). Dealing with the proposition, examining the provisions of Order XXXFII of the Code, Article 17(2)(a) of the Qanoon-e-Shahadat Order (President Order No,. 10 of 1984). Provisions of The Negotiable Instruments Act (XXVI of 1981) and Section 2(5)
(b) of the Stamp Act (II of 1899), it was held at page-120 as follows:--- "Besides the above, according to the provisions of Section 2(5)(b) of the Stamp Act, 1899, if an instrument, which may otherwise be a promissory note, but if attested, by the witnesses, it attains the legal status of a bond and no more remains a negotiable instrument; thus one of the important testes to determine whether an instrument is bond or a promissory note, is the attestation of the witnesses. Reference in this behalf can be made upon the judgment reported as Ram Narayan Bhagat and another v. Ram Chandra Singh and others (AIR 1962 Patna 325), Haji Hamzo Panhwar. v. Muhammad Ibrahim, and another (PLD 1963 (W.P.) Karachi 962) and Dayal and another v. Bhimma (1925 Oudh 188).
7. I have gone through the rule of law expounded in "Altaf Hussain Sajid v. Muhammad Ant' (2008 Civil Law Cases 1489), a judgment rendered by a learned Single Bench of this Court whereby contrary view was taken. With great respect, suffice it to say that the judgment rendered in the case of "Altaf Hussain Sajid' (supra) would not advance the plea of appellant in view of dictum laid down in the case of 'Abdul Rauf' (PLD 2007 Lahore 114), a judgment recorded by the learned Division Bench of this Court.
' I have also gone through the Ratio expounded in "Muhammad Ashiq v. Rana Tariq Mahmood (2006 Corporate Law Decisions 865) in which another learned Division Bench of this Court took a contrary view.
' The rule of law was enunciated while deciding R.F.A. On 23rd of February, 2006 while case of "Abdul Rauf' was decided on 2nd of October, 2006 which is later in time and as such has to be followed having the binding force.
8. It is to be noted that again matter came up for adjudication before another learned Division Bench of this Court in the case of "Abdul Hameed v. Muhammad Afzal Atif' (PLJ 2012 Lahore 500) and while relying upon the dictum laid down in the case of "Abdul Rauf' (PLD 2007 Lahore 114), it was held that if promissory note is attested by the witnesses, it will not be considered negotiable instrument and attestation of the same would convert the said document into "bond".
' Learned counsel for the appellant also sought help from the Ratio expounded in "Sardar Ali Muhammad Khan v. Muhammad Ayyub" (2014 Corporate Law Decisions 193) but the same would not advance the plea of appellant because it deals with the entire different proposition of law. Moot point in the Report under reliance was presumption attached to the negotiable instrument under Section 118 of the Negotiable Instruments Act (XXYI of 1881).
9. Learned Additional District Judge while taking into consideration the law rightly reached to the conclusion to which no exception can be taken.
10. This Court is well conscious that though the application for leave to appear and defend the suit was allowed but ultimately, the defense of respondent was struck off in view of his failure to submit surety bond as the ing leave to appear and defend the suit was conditional.
11. With this background, it was half-heartedly argued that since defense of respondent was struck off. Therefore, he was not entitled to participate in the proceedings and the learned Trial Court should have dismissed the application filed by respondent under Order VII, Rule 10 of the Code.
Factual position though cannot be questioned but the argument would not advance the plea of the appellant for the simple reason that after striking off the defense of respondent, is was fixed for ex parte evidence of appellant and the learned Trial Court even in absence of respondent was required to satisfy itself with reference to competency of the suit, its jurisdiction as well as merits of the case on legal as well as factual premises.
12. In view of above state of facts and law, order regarding return of plaint on the application of respondent, though not entitled to participate in the proceedings, would not render the order nullity in the eye of law on this score.
13. Pursuant to above discussion, no exception taken to the impugned order and as such, appeal being devoid of force is dismissed in limine, leaving the appellant to bear his own costs. F.A.O.
Dismissed