This appeal is directed against the judgment dated 24th October, 1969 decreeing the respondent's suit for a sum of Rs. 10,000 with interest. And costs under Order XXXVII, C. P. C. In Civil Suit No. 74 of 1969. The brief facts leading to the filing of the above appeal are that the respondent filed the aforesaid suit under Order XXXVII, C, P. C. On a promissory note for the recovery of Rs. 10,000. Upon the service of summon the appellant applied for leave to defend. By consent of the learned counsel for the parties leave was granted on 3rd September, 1969 on the condition that the appellant shall furnish surety of the suit amount before 19th September, 1969. However, the appellant applied for extension of time on 24th September, 1969, 27th September, 1969 and 8th October, 1969 and the extensions applied for were granted. It seems that the appellant tendered surety inter alia one Merajuddin, but the same was not accepted by the learned District Judge on the ground that the said Merajuddin did not own any immovable property in Karachi. Consequently the decree was passed as no security was furnished as per aforesaid consent order dated 3rd September, 1969.
The appellant being aggrieved by the above judgment and decree has filed present first appeal.
2. (a) In support of the above appeal Mr. Abbas Farooqui holding brief for Mr. Said A. Shaikh, learned counsel for the appellant has made the following submissions : -
(i) That since the respondent had not filed the original promissory note along with the plaint, there was violation of the provisions of Order VII, rule 14, C.P.C. And, therefore, no decree could have been passed.
(ii) That the document in question is not a promissory note, but a bond and, therefore, the same should have been impounded by the learned District Judge instead of passing a decree thereupon.
(i.e) That the learned District Judge has failed to apply his mind, as under Order XX, rule 20, C. P. C.
He was obliged to give reasons for his judgment.
(iv) That the ground of refusal to accept the surety namely, that the surety did not own any immovable property in Karachi was not sufficient.
(b) On the other hand it has been urged by Mr. Mubarak Hussain Siddiqui, learned counsel for the respondent that since the photostat of the promissory note was filed alongwith the plaint, there was sufficient compliance of Order VII, rule 14, C. P. C. And that the document is a promissory note and not a bond within the purview of section 4 of the Negotiable Instruments Act. It has .Further been urged by him that once the leave was not availed of by the appellant by not furnishing the security as was ordered, the respondent was entitled to decree as a matter of right in terms of Order XXXVII, rule 2 (Z), C. P. C. It has also been urged by him that the learned trial court has applied its mind.
3. (a) Reverting to the first contention of Mr. Farooqui, it may be pertinent to observe that Order VII, rule 14, C. P. C. Contemplates that where a plaintiff sues upon a document in his possession, he shall produce it in court when the plait is presented and shall at the same time deliver the document or a copy thereof to be filed with the plaint. The requirement of the above provision of law is that a plaintiff is to produce the original document at the time of the presentation of the plaint. However, he is not required to file the same, but a copy thereof is to be filed with the plaint. In the instant case it seems the original promissory note was produced at the time of the presen-- tation of the plaint as indicated from the office note of the District Court dated 29th April, 1969 on the reverse of the last page of the plaint and a photostat copy thereof was filed with the plaint. In this view of the matter there was, sufficient compliance of the above provisions of Order VII, rule 14, C. P. C.
It may be pertinent to observe that since the original promissory note was not on the file of the trial Court 1 directed Mr. Mubarik Hussain Siddiqui, learned counsel for the respondent to produce the original of the same. In compliance of the above direction Mr. Mubarak Hussain Siddiqui has produced the original promissory note today in the Court, which is brought on the record and is marked as A-1.
(b) With reference to the second contention of Mr. Abbas Farooqui that the document in question cannot be construed as a pro--missory note, but it is a bond and, therefore, it should have been impounded by the learned trial Court instead of passing a decree there--upon. In support of this contention he has referred to the case of Haji Hamza Panwar v. Mohammad Ibrahim and another (1), wherein a learn--ed Single Judge of the Late High Court of West Pakistan, Karachi, Bench, pointed out a distinction between a receipt, bond and a promissory note in terms of section 2 clauses 23, 42 and section 5 of the Stamp Act. It was also held that if the instruments are attested by the witnesses and they are not payable to order or bearer and if they contain an application on the part of the executant to pay money to another, the same shall be a bond and not a promissory note. Whereas Mr. Siddiqui has referred to section 4 of the Negotiable Instruments Act, 1881, which defines a promissory note as follows :- "4. A "Promissory note" is an instrument in writing (not being a bank-note or a currency-note) containing an unconditional under--taking signed by the maker; to pay on demand or at a fixed or determinable future time a certain sum of money only to, or to the offer of, a certain person, or to the bearer of the instrument."
It may be observed that according to the definition given in the above-quoted section, a promissory note is an instrument in writing containing an unconditional undertaking, signed by the maker to pay either on demand or a fixed date or determinable future time, certain sum of money only to or to the order of certain person or to the bearer of the instrument. In other words according to the above definition the following are the ingredients of a promissory note :-
(i) an unconditional undertaking in writing,
(ii) To pay on demand or on fixed or determinable future time.
(i.e) To the person named therein or to the order of a certain person or to the bearer of the instrument.
It the instant case, it cannot be denied that the document in question contained an unconditional undertaking on the part of the appellant to pay a sum of Rs. 10,000 to the respondent by a fixed date i.e. 3rd February, 1969. In my view the above document falls within the ambit of section 4 of the Negotiable Instruments Act in order to entitle the respondent to maintain a suit under. Order XXXVII.
The attestation of the above promissory note by witnesses is of no consequence in view of section 72 of the Evidence Act, which provides that "An attested document not required by law to be attested may be proved as if it was unattested."
(c) Reverting to the third contention of Mt. Abbas Farooqui that the learned District Judge has not applied his mind inasmuch as he has not given the reasons he was required under Order XX, rule 4, C. P. C., it may he pertinent to observe that the suit in question was not an ordinary but a suit under Order XXXVII, C. P. C. Which provides the procedure as to how such a suit is to be disposed of. Order XXXVII, rule 2 (2), C.P.C. Provides that in any case in which plaint and summon are (1) PLD 1963 Kar.
962 in such form (form 4 provided under sub-rule (I) of Order XXXVII) the defendant shall not appear or defend ,the suit unless be obtains leave from a Judge and in default of his obtaining such leave or of his appearance and defence in pursuance thereof, the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree. In the instant case it is an admitted position that the appellant did not avail of the matter in the leave which was granted by the consent of the respondent as he has failed to furnish surety acceptable to the Court. In this view C of the matter the learned District Judge was entitled to pass a decree on the basis of the averments contained in the plaint. A court is required to give reasons under Order, XX, rule 4 when the parties are at issue, which was not the case in the instant case.
(d) With reference to Mr. Farooqui's contention that the appellant had to fact tendered a surety in terms of the leave granting order dated 3rd September, 1969 that the learned District Judge was not justified in rejecting the above surety on the ground that he did not own any immovable property in Karachi, it may be pertinent to observe that Mr. Merajuddin the last surety tendered by the appellant did not own any immovable property in Karachi, but he had an office on rent, where- -in he was carrying on some business and according to him he was a supplier of articles to the Government departments and had some outstanding bills. According to Mr. Farooqui the above surety owned' considerable immovable property in Lahore and, therefore, the same should have been accepted. In my view, the learned District Judge was justified in declining to accept, Mr. Merajuddin as the surety as he did not own any immovable property in Karachi. The owning of certain immovable property by him in Lahore makes no difference. In my view the object of obtaining security is to make the suit amount readily available in case a decree is passed against the appellant. In the instant case, if the decree was to be remitted to Lahore for execution, the very object of obtaining security would have been frustrated. It is not uncommon that while granting leave under. Order XXXVII, C. P. C. The Court asks the defendant to deposit the suit amount in cash for the obvious reason that the decretal amount should be readily available.
4. In view of the above discussion I do trot find any merit in the above appeal and hence the same is dismissed, but there will be no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.