Dr. Khurshid Iqbal, J.
1. The respondent (Umar Hayat) has brought a summary suit under Order XXXVII, Rule 2 of the CPC, against the petitioner (Bacha Ayaz) for recovery of Rs. 1,20,0000/00, on the basis of a promissory note, dated 21.03.2017. The promissory note has been attested by two witnesses. The petitioner moved an application before the Additional District Judge/Izafi Zilla Qazi of Tehsil Wari in District Dir Upper, the trial Judge, in which he objected to the maintainability of the suit. His objection is that the attestation of the document by two witnesses has divested it of its legal status as a promissory note. His objection has been overruled by the learned trial Judge vide his Order passed on 20.08.2020. He has, therefore, moved the instant Revision Petition before this Court.
2. The argument of the learned counsel for the petitioner is that attestation of a promissory note by witnesses makes it a bond within the meaning of Section 2(5) (b) of the Stamp Act, 1899. The learned counsel for the respondent, on other hand, argued that mere attestation by two witnesses is not enough if the document otherwise qualifies the conditions of a promissory note. I have heard arguments of learned counsels for both the parties and perused the record.
3. A promissory note has been defined in section 4 of the Negotiable Instruments Act, 1881 (the NIA).
It reads as under: "4. Promissory note.-- A "promissory note" is in an instrument in writing (not being a bank-note or a currency note) containing an 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 to the bearer of the instruments."
4. The issue has been thoroughly discussed in the case law. One view is that if attested by witnesses, a promissory note loses its legal status as such and attains the status of a bond within the meaning of Section 2(5) of the Stamp Act, 1899. This view was expressed in the case of Abdul Rauf v. Farooq Ahmad and another (PLD 2007 Lahore 114). A similar view has been expressed in Muhammad Ahmed Siddiqui and another v. Abdul Abid, Advocate and another (PLD 2021 Sindh 1). This case in essence relates to damages. In its para 5, the honourable Court has observed that the plaint categorically shows that the plaintiff has filed a suit for damages in the sum of Rs. 14, 00,000/- with principal amount due to alleged default in making payment by dint of agreement dated 12.02.2012 but a suit under XXXVII CPC was filed. In a 2016 case, the honourable Lahore High Court has also ruled that a promissory note stands converted to a bond if it is attested by witnesses (Ehsanullah v. Abdual Salam (2016 CLC Note 4) aahoreh. In this case, reliance was placed on Abdul Rauf (supra).
5. Another view is that the mere fact that a promissory note has been attested by witnesses does not ipso facto convert it to a bond. This opinion was recorded by the honourable High Court of Sindh in Sajjad Aslam Gondal v. Muhammad Ashraf Gondal reported as 2011 CLD 952 [Karachi].
In this case, two tests were set out for a promissory note: first, the words used in the body of a promissory note 'which depend upon the circumstances and wording in each case'; and second, whether such a document is negotiable, notably, enabling a third person to institute on its basis.
The opinion further adds that a promissory note must, state an undertaking to pay money to another. It may be mentioned here that for this opinion support was sought from PLD 1965 SC 634 and AIR 1926 Nagpur 194.
6. A third view is that if attested by witnesses, a document still retains its status of a promissory note provided it qualifies the conditions laid down in its definition in Section 4 of the NIA. This view has been expressed by august the Supreme Court in Muhammad Ashraf v. Muhammad Boota reported as PLJ 2016 SC 169. The honourable Court has observed: "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 witnesses 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."
A latest case in which the above ruling has been relied upon is that of Khan Muhammad v.
Muhammad Aslam (2022 CLD 799) [Lahore (Malian Bench)]. In this case, the honourable Court has elaborated the term "bond" as defined in Section 2(5) of the Stamp Act, 1988.
7. It is seems pertinent to mention here that this Court has also rendered similar opinion in certain cases. Reference may be made to Syed Fida-ur-Rehman v. Muhammad Zahid (2012 CLC 853)
[Peshawar] and Fazal Ellahi v. Akhtar Ali (2011 CLC 334) [Peshawar]. In the former case, it was emphatically observed that attestation of witnesses would not change a promissory note to a bond. In the latter case, it was held that primary consideration would be for the contents of the promissory note.
8. The above discussion has led me to the conclusion that the mere fact that the promissory note in the case in hand has been attested by two witnesses, is not sufficient to discard it as a promissory note. Indeed, the contents of the document in question qualify the conditions of a promissory note as per its definition in Section 4 of the MA. Resultantly, I find no ground for interference with the impugned order. Hence, the Revision Petition is dismissed.