ABID AZIZ SHEIKH, J.----This Civil Revision under section 115, C.P.C. has been filed against the order dated 07.3.2019 passed by learned Additional District Judge, Lahore whereby suit filed by the petitioner against the respondent under Order XXXVII, Rule 2 of the Code of Civil Procedure, 1908 (C.P.C.) was returned under Order VII, Rule 10, C.P .C. for presentation before appropriate forum.
2. Brief facts are that petitioner filed a suit against the respondent Under Order XXXVII, Rule 2, C.P.C. on the basis of pro-note and receipt dated 06.10.2015, for recovery of loan amount of Rs.402000/- along with monthly profit/rent of Rs.24000/-. The petitioner in plaint also referred to additional security of mortgage deed dated 06.10.2015 of house measuring two marlas in respect of said loan amount. In response to notice, the respondent appeared in person in said suit, however , subsequentl y, failed to pursue the matter , hence proceeded against ex-parte. Learned trial Court recorded the evidence of the petitioner and his witnesses as PW-1 to PW-3 who also produced documents including pro-note, receipt and mortgage deed as EX-P1 to EX-P3. However , after considering the documentary and oral evidence, through impugned order , the suit was returned under Order VII, Rule 10, C.P.C. for presenting the same before appropriate forum. The petitioner being aggrieved filed this revision petition.
3. Learned counsel for the petitioner submits that petitioner suit was mainly based on pro-note and the mortgage deed was only presented as additional security , therefore, the plaint could not be returned. Despite notice, none appeared on behalf of the respondent to contest this matter , who has already been proceeded against ex parte on 16.9.2019.
4. Arguments heard. In this civil revision, there are two legal questions which require determination by this Court: Firstly , whether the document dated 06.10.2015 fall within the definition of promissory note: Secondly , if beside promissory note, an additional instrument of mortgage has been executed regarding the same loan amount, whether suit under Order XXXVII, Rule 2, C.P .C. was proceedable.
5. Regarding first question, there is no cavil with the legal proposition that suit under Order XXXVII, Rule 2, C.P.C. can be filed in respect of negotiable instruments which includes promissory notes. The promissory note is defined under section 4 of the Negotiable Instruments Act, 1881 (Act) as under:- "Promissory note." A "promissory note" is 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 the bearer of the instrument".
6. Plain reading of above definition shows that a document shall be regarded as promissory note if it fulfills the following requirements:-
(i) An unconditional undertaking to pay ,
(ii) The sum should be a sum of money and should be certain,
(iii) The payment should be to or to the order of a person who is certain, or to the bearer , of the instrument,
(iv) And the maker should sign it, If all above four conditions are present, the document become a promissory note under section 4 of the Act. The perusal of document dated 06.10.2015 (EX-P1) shows that respondent unconditionally undertook to pay Rs.402000/- to the petitioner along with Rs.24000/- per month as profit/rent. The above document is also duly signed by the respondent. The document dated 06.10.2015 (EX-P1) on face of it is an unconditional undertaking by respondent to pay certain amount of money to petitioner and being also duly signed by respondent, undoubtedly fulfills the essentials of promissory note under section 4 of the Act.
7. In respect of second legal question no doubt, the petitioner in his plaint referred to mortgage deed dated 06.10.2015 as additional security . However , the prayer clause of the plaint shows that the petitioner is only seeking money decree on the basis of pro-note and not for recovery of amount by sellin g the mortgage property on the basis of mortgage deed. Indeed suit for the enforcement of mortgage deed could only be filed in ordinary jurisdiction under Order XXXIV , Rule 14, C.P.C., however , mere fact that petitioner has secured the repayment of the loan amount by way of mortgage in addition to pro-note, would not deprive the petitioner to enforce recovery of loan on the basis of pro-note. However , Order XXXIV , Rule 14, C.P.C., provides that where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising unde r the mortgage, he shall not be entitled to bring the mortgage property to sale otherwise than by instituting a suit for the sale in enforcement of mortgage and he may institute such suit notwithstanding anything contained in Order II, Rule 2, C.P .C.
8. The law thus provide dual remedy to the petitioner by filing a suit under Order XXXVII, Rule 2, C.P.C., on the basis of pro note and suit under Order XXXIV , Rule 14, C.P.C., for enforcement of mortgage deed and such suit is not barred by Order II, Rule 2(b), C.P.C. Therefore, mere fact that mortgage deed has been executed in addition to a pro-note will not exclude the summary jurisdiction of Court under Order XXXVII, Rule 2, C.P.C., for the enforcement of promissory note.
9. Similar proposition came up before learned Division Bench of Sindh High Court in Hatimbhai v. Karimbhai (1993 MLD 988) where the plaintif f had sought a decree on the basis of promissory note and mortgage. The learned Single Bench proceeded to decre e the suit in accordance with the provision of Order XXXVII, C.P.C. The learned Division Bench upheld the said order and held as under:- "The claim in the suit was based on the said mortgage as well as the said promissory notes, as is evident from the plaint filed in the suit. The prayer clause in the plaint further indicates that the decre e sought by the respondent was a money decree, or in the alternative, a decree based on the said mortgage. Thus, there were two distinct and separate claims made by the respondent in the plaint which could be dealt with by the Court by following different procedures, one embodied in Order XXXIV and the other in Order XXXVII of the C.P. Code. The judgment, dated 29-9-1986, shows that the learned Single Judge by following the procedure laid down in Order XXXVII, C.P.C. decreed the suit in favour of the respondent. The decree passed by the learned Single Judge in the suit was a simple money decree, which was not based on the mortgage, but the same was based on the claim under the promissory notes, notwithstanding the reference by the learned Judge to the mortgage as well. However , it is clear that only the part of the claim which was based on the promissory notes was considered by the learned Judge which resulted into passing of the said decree. Rule 14 of Order XXXIV would be applicable only when a claim arises under a mortgage, which obviously does not appear to be the case in the case in hand, as just pointed out by us. Consequently , we are unable to agree with Mr. SA. Samad Khan that the order passed by the learned Judge is liable to be recalled as the order passed by the learned Single Judge is unassailable: H. CA. No. 107/1990 is therefore, liable to be dismissed".
10. In like manner in Sindh Engineering and Bangle Works Hyderabad and others v. Habab Bank Ltd. (PLD 1993 Karachi 38), the learned Court held that merely because the appellants had secured the repayment of the loan by mortgage in addition to promissory note, would not deprive the respondent to enforce the recovery of the loan on the basis of the promissory note. The relevant observation is reproduced hereunder: - "Merely the fact that the appellants had secured the repayment of the loan by mortgage in addition to promissory note, would not deprive the respondent to enforce the recovery of the loan on the basis of the promissory note. The only bar in this regard is contained under Order XXXIV , Rule 14, C.P. C. which provides that where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage. Under such circumstances the creditor would be required to file a separate suit for recovery of the amount from the mortgaged property on the basis of the mortgage. The law thus provides dual protection to the creditor . ".
Similarly in Messrs Naflina Cotton Industries and others v. Cotton Export Corporation of Pakistan (1994 CLC 2281) , learned Court held that reliance on additional supporting documentary material other than the promissory note will not take the suit out of the jurisdiction of Court under Order XXXVII, C.P .C.
11. From the above discussion, it is evident that suit on the basis of promissory note will be filed under Order XXXVII, C.P.C. and suit on the basis of mortgage will be governed under Order XXXIV , C.P.C. The above case law also established beyond doubt that the suit filed by the petitioner on the basis of promissory note dated 06.10.2015 (EX-P1), which is a self executable document, was maintainable under Order XXXVII, Rule 2, C.P.C., and mere fact that mortgage deed has been executed as an additional security in respect of the same loan amount, will not render the suit liable to be returned under Order VII, Rule 10, C.P .C.
12. In view of above discussion, the instan t civil revision is allowed . Resultantly , while setting aside the impu gned order dated 07.3.2019, the matter is remitted to the learned Additional District Judge, Lahore where the same shall deem to be pending for its early decision on merits in accordance with law. The original files shall be returned by the of fice to the relevant Court.