' The precise facts of the case are that Muhammad Ramzan appellant filed a recovery suit under Order XXXVII Rules 1 & 2 of the Civil Procedure Code of 1908 against the respondent/defendant on the basis of a pro-note dated 6.1.2005 with the assertion that she had borrowed an amount of Rs.
95,000/-from him for two months and promised to return the same till 06.3.2005, but on demand she refused to repay the same. The respondent/defendant was proceeded against ex parte on 09.2.2007. However she put in appearance before the learned trial Court on 21.3.2007 by filing two separate applications one for leave to defend the suit and the other for setting aside of ex parte order dated 09.2.2007 and the case was fixed for arguments for 03.7.2007 when the plaint of the suit filed by the appellant/plaintiff was returned to him for institution before the Court of Ordinary jurisdiction vide order dated 03.7.2007. Hence the instant appeal.
2. On calls none has appeared on behalf of the respondent. The report of the Process Server shows that the respondent was once served through her husband and twice she refused to accept service of the notice. It appears that the respondent is not interested to pursue this matter on merits, who is proceeded against ex parte.
3. Arguments of learned counsel for the appellant heard and record perused.
4.The learned trial Court after having found that the pro-note was signed by two witnesses and while relying upon the dicta laid down in judgment reported as Abdul Rauf Vs. Farooq Ahmed and another (PLD 2007 Lahore 114) observed that the disputed pro-note on the basis of which suit was filed did not fall within the definition of negotiable instrument rather the same would be covered by the definition of bond and while passing the impugned order returned the plaint of the suit to the appellant/plaintiff to institute the same before the Court of ordinary jurisdiction.
5. The view rendered by the learned Division Bench of this Court in case of Abdul Rauf (supra) has not been approved by the apex Court while accepting Civil Appeal No. 1784 of 2008 vide judgment dated 5.6.2014 authored by his lordship Ejaz Afzal Khan, J observed as under:-- "...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 or 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 not 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. If thus follows that the promissory note containing all the conditions described in Section 4 of the Negotiable Instrument Act cannot be treated as bond."
6. On the touchstone of above dicta a promissory note even if was attested by two witnesses, the same remains within the definition of pro-note and a recovery suit on the basis of negotiable instrument is triable by the District Court under Order XXXVII Rules 1 & 2 of the Civil Procedure Code of 1908. The pronouncement of the apex Court is binding on all the subordinate Courts under Article 189 of the Constitution of Islamic Republic of Pakistan, 1973 and the impugned order cannot be maintained. Consequently, the instant appeal is accepted, impugned order is hereby set aside and the suit filed by the appellant/plaintiff will be deemed to be pending before the learned trial Court for decision in accordance with law, who before proceeding with the trial will ensure that service is effected upon the respondent-defendant.
7. The appellant/plaintiff is directed to appear before the learned District Judge, Multan on 01.10.2015, who may hear the suit himself or entrust the same to any other Court of competent jurisdiction for further proceedings.