' Ijaz Afzal Khan, J.--This appeal has arisen out of the judgment dated 15.09.2008 of a Division Bench of Lahore High Court, Lahore whereby it allowed the appeal filed by the respondent, set-aside the judgment and decree dated 06.02.2002 of the learned Additional District Judge, Bahawalpur.
2 Facts leading to institution of this appeal are that the appellant instituted a suit in the Court of learned Additional District Judge, Bahawalpur under Order XXXVII Rule 2 of CPC for recovery of Rs.
6,70,000/- on the basis of promissory, note and receipt dated 22.7.1998. The suit after recording the evidence and hearing the parties was decreed vide judgment dated 6.2.2002, The respondent preferred Regular First Appeal in the Lahore High Court which was allowed mainly on the ground that in negotiable instrument attested by witnesses becomes a bond within the terms of Section 2(5)(b) of the Stamp Act 1899. Reliance was placed on the case of "Abdul Rauf vs. Farooq Ahmed and another" (PLD 2007 Lahore 114).
3.Learned ASC appearing for the appellant contended that when the instrument contains all the conditions of a promissory note, it does not loose its character as such simply because it was attested by witnesses. Learned ASC to support his contention placed reliance on the case "Farid Akhtar Hadi vs. Muhammad Latif Ghazi and another" (1988 CLC 2397).
4.As against that the learned ASC appearing for the respondent contended that an instrument which is not required by to be attested becomes a bond, if attested, in terms of Section 2(5)(b) of the Stamp Act, therefore, the learned Division Bench of the Lahore High Court, rightly allowed the appeal preferred by the respondent. The learned ASC to support his contention placed reliance on the cases of "Abdul Rauf vs. Farooq Ahmed and another" (Supra), "Abdul Hameed vs. Muhammad Afzal Atir (PLJ 2012 Lahore 500 (DB) and "Ram Narayan Bhagat and another vs. Ram Chandra Singh and others" (AIR 1962 PATNA 325).
5. We have gone through the entire record carefully and 'considered the submissions of the learned ASCs for the parties.
6. Before we deal with the arguments addressed at the bar, it is worthwhile to see the definition of the expression promissory note as given in Section 4 of the Negotiable Instrument Act which read as under:-- "4.--Promissory note.--A "promissory note" is an instrument in writing (not being a bank-note or a current note) containing on unconditional, undertaking, 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 order of a certain person, or the bearer of the instrument".
7.The above quoted provision reveals that a promissory note is an Instrument in writing if it contains an unconditional undertaking, signed by the maker, to pay on demand or at a fixed or determinable future time, a certain sum of money either to, or to the order of a certain person or the bearer of the instrument. The instrument in question contains, all these conditions. It, however, bears attestation of withesses but it neither robs it of its nature as a promissory note nor changes any of its conditions nor even the intentions of the parties. It thus cannot be treated as bond by any stretch of interpretation. For the word bond as defined in Section 2(5) (b) of the Stamp Act means and includes any instrument attested by witnesses and not payable to order or bearer whereby a person obliges himself to pay money to another. When we confronted the learned ASC for the respondent whether the instrument contains an unconditional undertaking to pay on demand of at a fixed or determinable future time, a certain sum of money either to the order of a certain person or the bearer of the instrument, he answered in the affirmative. When so the mere fact that it bears attestation of witnesses would note make it a bond. Therefore, the impugned judgment and the judgments relied upon being against the letter and spirit of Section 4 of the Negotiable Instruments Act cannot be upheld. The case of "Farid Akhtar Hadi vs. Muhammad Latif Ghazi and another"
(supra) being in tune with the letter and spirit of Section 4 of the Act may well be cited in this behalf. Reference to the case of "Ram Narayan Bhagat and another vs. Ram Chandra Singh and others" (supra) is misconceived as in that case there was nothing in the instrument, indicating that the amount was payable to order or bearer. It thus follows that the promissory note containing all the conditions described in Section 4 of the Negotiable Instruments Act cannot be treated as bond.
8. For the reasons discussed above, we allow this appeal, set aside the impugned judgment and send the case back to the High Court for decision in accordance with law.