SHAHID BILAL HASSAN J. Succinctly, the respondents instituted a suit under Order XXXVII Rule 2 C.P.C. for recovery of Rs.3,84,00,000/- against the present appellant. It was averred that the respondents are husband and wife, whereas the appellant is brother in law of respondent No.1. The present appellant was running business and was in need of loan, so he approached the respondents and they provided him an amount of Rs.1,50,00,000/-. In response, the present appellant executed two pro-notes, one in the sum of Rs.1,00,00,000/- on 01.11.2011 with an undertaking to pay profit at the rate of 4% per month to the respondents while the second in the sum of Rs.50,00,000/- and profit rate was settled at the rate of Rs.5% per month. However, the present appellant failed to make payment of profit to the respondents on the pretext that business was not rendering good profit. The present appellant remained making assurance to make payment but failed and consequently the relations between the parties became strained. The appellant with the intervention of the family members, issued 15 cheques in favour of respondent No.1 and to the extent of profit, it was undertaken that same would be paid after realization of actual amount but when the said cheques were presented before the concerned bank for encashment, the same were dishonored, which constrained the respondent No.1 to lodge FIRs against the present appellant. The respondents made efforts for realization of the said amount but remained unsuccessful, which culminated in filing of the suit.
2. The present appellant on 28.02.2015 filed an application for leave to appear and defend the suit but the same was dismissed by the learned Trial Court and suit of the respondents was decreed to the extent of Rs.1,50,00,000/- (one crore and fifty lacs rupees) vide order dated 08.10.2015, where against the present appellant filed R.F.A. No.1598 of 2015 before this Court and this Court vide judgment and decree dated 12.09.2017 while accepting the appeal, set aside the order of learned Trial Court dated 08.10.2015 and remanded the matter to the learned District Judge, Lahore, with the observation that the suit titled "Mohammad Saleem Shad Qureshi and another v. Shehzad Akhtar" would be deemed to be pending and the learned trial Court after requisitioning the record from the concerned quarters would proceed to frame issues and grant ample opportunities to both the sides to produce their respective evidence and then decide the suit on merits. In compliance of the same, the learned Trail Court framed eight issues including the "relief".
Thereafter, on application of the present appellant under Order XIV Rule 5 C.P.C. for amendment in issue No.5 and framing of additional issue, the learned Trial Court amended issue No.5 and framed additional issue No.5-A. Both the parties adduced their oral as well as documentary evidence. On conclusion of trial, the learned Trial Court after hearing respondent No.1 in person and learned counsel for the present appellant vide impugned judgment and decree dated 13.06.2020 decreed the suit of respondents to the extent of principal amount i.e. Rs.1,50,00,000/- and also held the respondents entitled to recover Rs.7.5 million as compensation from the appellant. The respondents are also held entitled to recover 6% profit at the principal amount from the present appellant w.e.f. 13.06.2020 till its actual recovery. Hence, the instant regular first appeal.
3. Learned counsel for the appellant has argued that the impugned judgment and decree is against law and facts of the case; that the suit as instituted on the basis of two alleged promissory notes Ex.P2 and Ex.P3 was not maintainable and competent in the eye of law for the reason that the alleged execution of two distinct documents on two different dates gave arise to two separate alleged causes of action and both the alleged claims cannot be claimed by filing a single joint suit which is liable to be dismissed as the same is also barred under Order II, Rule 2(1) and 3(1) CPC; that under section 7 of the Court Fee Act, 1870 read with section 2 Rule 3(1), 6 and Order VII, Rule 11(C), Code of Civil Procedure, 1908, joinder of two distinct and separate causes of action based on two distinct subjects, court fee already paid on plaint payable on one relief is based on one cause of action, therefore, the plaint on this score is liable to be rejected; that promissory notes have insufficiently been stamped, therefore, the same are inadmissible in evidence and suit on this score merits its dismissal; that the contents of the alleged promissory notes reveals that the same are not negotiable instruments and are not covered under Negotiable Instruments Act because the alleged loan has been shown to be returnable with certain amount of profit; that the plaintiffs miserably failed to prove the payment of alleged loan amount on two occasions by producing oral as well as documentary evidence; that the plaintiff No.1 while appearing as P.W.1 on his own behalf and on behalf of plaintiff No.2 in the capacity of attorney has categorically waived of the claim of profit, allegedly settled, but on the contrary the learned trial Court has proceeded to grant profit @6/% from the date of judgment and also 7.5 million as compensation, meaning thereby the learned trial Court has transgressed its jurisdiction and has acted with pure illegality in granting such reliefs which have not been claimed by the plaintiffs; that the impugned judgment and decree suffers from misreading and non-reading of evidence on record; that the learned trial Court has failed to apply correct law on the point of maintainability of the suit; that the question of nature of the document as to whether Ex.P2 and Ex.P3 fall within the ambit of either "promissory note" or "Bond" has not been decided properly by the learned trial Court; that after specific denial of his signatures over the disputed promissory notes and receipts, the learned trial Court ought to have referred the matter to the handwriting expert under Article 59 and 78 of the Qanun-e- Shahadat Order, 1984 but the same was not done and even the learned trial Court did not compare the same with admitted one; that execution of Ex.D5 is admitted one and as such not required to be proved as per Article 79 of the Qanun-e-Shahadat Order, 1984 and the same is sufficient to rebut the whole claim of the respondents/plaintiffs; that there are material contradictions in depositions of the P.Ws. and even dishonest improvements have been made but the same have been ignored; that the evidence beyond pleadings has been led which could not have been considered as the same is inadmissible; that the scribe of the documents Ex.P2 and Ex.P3 has not been produced, so the scribing of the same has not been proved but even then the impugned judgment and decree has been passed; that the impugned judgment and decree suffers from legal infirmities of misreading, non-reading, miscalculation and misappreciation of oral as well as documentary evidence and the learned trial Court has misinterpreted the provisions of law on the subject; hence, the same is not sustainable in the eye of law and liable to be set aside by allowing the appeal in hand.
4. On the contrary, respondent No.1/plaintiff No.1 while controverting the above said submissions has supported the impugned judgment and decree and has prayed for dismissal of the appeal in hand.
5. Heard.
6. Rule 2 of Order XXXVII, Code of Civil Procedure, 1908, under which a summary suit is instituted, provides:- "Institution of summary suits upon bills of exchange, etc.--(1) All suits upon bills of exchange, hundies or promissory notes, may, in case the plaintiff desires or proceed hereunder, be instituted by presenting a plaint in the form prescribed; but the summons shall be in Form No.4 in Appendix B or in such other form as may be from time to time prescribed.
(2) In any case in which the plaint and summons are in such forms, respectively, the defendant shall not appear or defend the suit unless he obtains leave from a judge as hereinafter provided so to appear and defend; 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--
(a) ........
(b) ........
(c) ........
(3) ........
Provided that, if the plaintiff claims more than such fixed sum for costs, the costs shall be ascertained in the ordinary way.
The bare reading of the above provision of law makes it vivid that all suits upon bills of exchange, hundies or promissory notes, may, in case the plaintiff desires or proceed, be instituted by presenting a plaint in the form prescribed; meaning thereby the suit with regards to negotiable instruments, without claim of any other amount are to be instituted under the above said Order XXXVII, Code of Civil Procedure, 1908 and if part payment is made and if the transaction with regards to investment is carried out and instead of paid amount, certain amount of benefit or interest is claimed, such suit is not covered by above provision of law, rather Court of ordinary jurisdiction has to be approached. Here, paragraph No.1 of the plaint is necessary to be reproduced, in order to, understand the above observation, which reads:- "1. That the plaintiffs are husband and wife while the defendant is the real brother of plaintiff No.2, therefore, on the basis of close relationship there was a mutual trust amongst the parties to the suit. The defendant was running business and needed loan. He approached the plaintiffs for the said purpose and they provided him an amount of Rs.1,50,00,000/- (one crore and fifty lacs). The defendant executed two pronotes one in the sum of Rs.1,00,00,000/- (Rs.One crore) was executed by the defendant on 01.11.2011 with an undertaking to pay profit at the rate 4% per month to the plaintiffs while another in the sum of Rs.50,00,000/- (Rs.Fifty lacs) was executed by the defendant; wherein the rate of profit was settled at 5% per month. Copies of pronotes duly signed by the defendant and attested by the witnesses are appended herewith as Annex-A & B.
Perusal of the promissory notes exhibited on record as Ex.P2 and Ex.P3 divulges that the same have been signed by the marginal witnesses. In this respect, it is observed that "Promissory Note" and "Bond" are different documents and against both different remedy is available under law. Section 4 of the Negotiable Instruments Act defines promissory note as under:- "Promissory Note.--A "Promissory Note" is an instrument in writing (note being a blank-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.
The above definition of Negotiable Instruments Act makes it vivid that it does not require attestation by any witness as it is a promise by its maker for the payment of amount received under Negotiable Instruments Act and in case the said document i.e. Promissory Note requires certain attestation, it becomes a "Bond", which has been defined in section 2(5) of the Stamp Act, 1899, which reads:- "(5) Bond: "Bond" includes.--
(a) Any instrument whereby a person obliges himself to pay money to another, on condition that the obligation shall be void if a specified act is performed, or is not performed as the case may be;
(b) Any instrument attested by a witness and not payable to order or bearer whereby a person obliges himself to pay money to another; and
(c) Any instrument so attested, whereby a person obliges himself to deliver grain or other agricultural produce to another.
Moreover, the plaint further reveals that the respondents have not only claimed the alleged amount mentioned in the disputed cheques but also the profit worth Rs.2,34,00,000/- calculated over principal amount, which has been denied by the appellant.
7. Pursuant to the above, after assessing the record and going through the pleadings of the parties, especially the plaint, this Court has reached to a conclusion that the matter in hand is not covered by Order XXXVII, Code of Civil Procedure, 1908, rather Court of ordinary jurisdiction i.e. Civil Court has to be approached in the matter in hand, therefore, this Court does not find it appropriate to give further observations on merits of the case, may it prejudice case of either side.
8. For the foregoing reasons, the appeal in hand is allowed, impugned judgment and decree is set aside and plaint is returned under Order VII, Rule 10, Code of Civil Procedure, 1908 for its presentation before a Court of competent jurisdiction, which will proceed with the matter and decide the same on merits in accordance with law. No order as to the costs.