MASUD ABID NAQVI, J. Brief facts necessary for the adjudication of this /is are that the respondent/plaintiff filed a suit for recovery of Rs.300,000/- under Order XXXVII, C.P.C., against the appellant/defendant with the specific averments that, he paid an amount of Rs.300,000/- to the defendant/appellant as a loan on 12.07.2006 in presence of witnesses namely Zafar Abbas and Mohammad Mushtaq and the appellant/defendant handed over to the respondent/plaintiff a cheque No. 641730 and the said cheque was dis-honoured for insufficient funds on 09.11.2006.
Thereafter, the respondent/plaintiff presented the cheque on 01.02.2007 and 22.03.2007 but the cheque was not encashed due to insufficient fund, hence the instant suit The appellant/defendant denied about the receipt of loan from the respondent/plaintiff with the claim that the disputed cheque was handed over to the respondent/plaintiff as. He further pleaded that an amount of Rs.100,000/-was returned by him to the respondent/plaintiff after the initiation of criminal proceedings against the appellant/defendant. Out of divergent pleadings of the parties, issues were as by the learned Trial Court and parties led their respective oral as well as documentary evidence. After hearing the arguments advanced by both the parties, the learned Trial Court vide judgment and decree dated 13.02.2016 decreed the suit. Feeling aggrieved, the appellant/defendant preferred instant appeal and challenged the validity of the impugned judgment and decree passed by the learned trial court.
2. Apart from other arguments, learned counsel for appellant mainly argues by placing reliance on the case reported as Khalid Mahmood v. Tandlianwala Sugar Mills Ltd through Manager, Personnel and Administration Faisalabad (PLD 2011 Lahore 52) that learned trial court had no jurisdiction to entertain and adjudicate upon the lis because after the receipt of an amount of Rs.100,000/- by the respondent/plaintiff before filing of suit, negotiable instrument lost its enforceability under special law. I have heard the arguments of learned counsel for the appellant/ defendant and minutely gone through the record as well as the impugned judgment and decree.
3. There is no denial of facts that disputed cheque No.641730 was issued on 12.07.2006, suit was instituted on 21.10.2009 on the basis of cheque amount and the respondent/plaintiff admittedly received an amount of Rs.100,000/- from the appellant/defendant in the year 2008 before filing suit. While appearing as PW-1, respondent/plaintiff conceded about the part-payment in cross- examination but by concealing this fact intentionally, failed to plead this fact in his plaint and simply filed a suit for recovery of cheque amount. Now the question which comes up for consideration is as to what the expression "sum of amount undertaken or ordered to be paid to payee" means in a case where the admitted liability of the drawer of the cheque gets reduced, on account of part-payment made by him, after issuing the cheque. No doubt, the expression "sum of amount undertaken or ordered to be paid to payee" would mean the amount of the cheque alone in case the amount payable by the drawer but, can it be said the expression "sum of amount undertaken or ordered to be paid to payee" would always mean the amount of the cheque, even if the actual liability of the drawer of the cheque has got reduced on account of some payment(s) made by him towards discharge of the debt or liability in consideration of which cheque in question was issued. If it is held that the expression "sum of amount undertaken or ordered to be paid to payee" would necessarily mean the amount of cheque in every case, the drawer of the cheque would be required to make arrangement for more than the cheque amount A payable by him to the payee of the cheque in case of part-payment by the drawer of cheque to the payee.
Obviously this could not have been the intention of the legislature to make a person liable to pay more amount than amount payable through cheque. If the drawer of the cheque is made to pay more than the amount actually payable by him, the inevitable result would be that he will have to chase the payee of the cheque to recover the excess amount paid by him. Therefore, it is difficult to take the view that even if the admitted liability of the drawer of the cheque has got reduced, on account of certain payment(s) made after issuance of cheque, the payee would be entitled to present the cheque for the whole of the amount to the banker for encashment or in such a case, if cheque is dishonoured for want of funds, a cause of action compulsorily will arise to file a suit for recovery of cheque amount under Order XXXVII, C.P.C. I am also conscious/aware of the situation where with a view to circumvent and get out of summary procedure under Order XXXVII, C.P.C., the drawer of a cheque can make part-payment of the amount of the cheque but this can easily be avoided by payee of the cheque, either by taking new cheque of the reduced amount from the drawer or by making an endorsement through a note on the cheque by the drawer acknowledging the part-payment and then presenting the cheque for encashment of only the balance amount due and payable to him. In fact, Section 56 of Negotiable Instruments Act, 1881 specifically provides for an endorsement on a Negotiable Instrument with regard to part-payment and the instrument can thereafter be negotiated for the balance amount. If the drawer and payee of cheque adopt the procedure given in section 56 of Negotiable Instruments Act, then it would be open to the payee of the cheque to present the cheque for payment of only that much endorsed balance amount which is due to him. After the receipt of admitted part-payment from the amount of cheque before filing the suit, the payee can neither present the cheque for encashment without adopting procedure under Section 56 of Negotiable Instruments Act, 1881 nor can file suit for recovery of cheque amount while invoking special jurisdiction under Order XXXVII, C.P.C. in new circumstances/situation which is a subsequent agreement rather will file a suit for recovery of balance amount of cheque before an ordinary civil court of plenary jurisdiction. Generally, there is no cavil to the proposition that Order XXXVII, C.P.C., does not restrict person(s) /plaintiff(s) from filing an ordinary suit for recovery of cheque amount before an ordinary civil court of plenary jurisdiction rather provides discretion to either institute a suit by invoking special jurisdiction under Order XXXVII. C.P.C., or to file the same under ordinary procedure before ordinary civil court of plenary jurisdiction and there exists no legal compulsion to restrict the choice of person(s)/plaintiff(s).
4. In view of the foregoing discussion, I am of the affirmed view that the learned trial court erred in law in decreeing the suit vide impugned judgment dated 30.10.2014, hence, the same is hereby set- aside by allowing this regular first appeal on the question of jurisdiction with the direction to learned Additional District Judge to return the plaint under Order VII, Rule 10, C.P.C., to the respondent/plaintiff for filing the same before an ordinary civil court of plenary jurisdiction.