' This appeal arises out of a suit filed by Shabbir Ahmad and Imtiaz Ahmad, respondents Nos. 1 and 2, on 15-12-1987 in the Court of the learned District Judge, Muzaffargarh, for recovery of an amount of Rs, 16,000, which was originally deposited by them as Zar-i-Panjam in a pre-emption suit.
2. The pre-emption suit was filed by Shabbir Ahmad and Imtiaz Ahmad, respondents Nos. 1 and 2, against one Shamas-ul-Nabi, in the Court of the Civil Judge, Alipur. Under the order of the Court, the plaintiffs/respondents Nos. 1 and 2 deposited an amount of Rs, 16,000 by way of Zar-i-Panjam on 26-7-1986. Subsequently, they applied through one Muhammad Amir s/o Mehr Pehlwan for withdrawal of the amount in January, 1987. The learned Civil Judge, respondent No, 3, herein, ordered refund of the amount, in pursuance of which voucher dated 11-1-1987 was issued in the names of Shabbir Ahmad etc. Through Muhammad Amir under the signature and seal of the Court.
He presented it to the Sub-Treasury Officer, who refused to pass it on for payment on the ground that the amount had already been withdrawn on 10-9-1986 by one Muhammad Yaqub son of Muhammad Ramzan through Voucher No, 20 dated 8-9-1986. The said Muhammad Yaqub was identified before the Sub-Treasury Officer by an Advocate named Ashiq Farid.
3. Respondents Nos. 1 and 2 filed a suit under Order XXXVII of the Code of Civil. Procedure on 15-12- 1987 against the Sub-Treasury. Officer and the Province of Punjab. Subsequently, the Civil Judge, respondent No, 3, was impleaded as a defendant in the suit. The suit was contested by the appellants, who filled their written statements in the Court, which gave rise to the following issues:- -
(1) Whether this Court has no jurisdiction to hear this suit? OPD
(2) Whether the suit is bad for non-joinder of necessary party? OPD
(3) Whether the money deposited by the plaintiffs was withdrawn by one Muhammad Yaqub and hence the defendants are not liable for the payment of the money to the plaintiffs? OPD
(4) Relief.
' In support of their case, respondents Nos. 1 and 2 produced Muhammad Amir, P.W. 1, and placed on the record the voucher Ex. P-1, (which was not approved for payment by the Sub-Treasury Officer). On the other hand, the defendants produced Khalil Ahmad, D.W. 1, and Ashiq Hussain, D.W.
2, in support of their case, apart from the documents Exs. D-1 to D-5. Ex. D-1 is Voucher No, 20 on which payment was made to Muhammad Yaqub. Ex. D-2 is the receipt of the voucher book. Ex. D-3 embodies specimen signature of the Civil Judge. Ex. D-4 is the copy of the register showing payment to Muhammad Yaqub. Ex. D-5 is the copy of the F.I.R. No, 7 of 1987 dated 16-1-1987 registered on the report made by the Civil Judge, Alipur, about the fraud committed by Muhammad Yaqub in collaboration with some other persons. After going through the evidence, the trial Court decreed the suit vide its judgment and decree dated 11-10-1989. Hence, this appeal.
4. The learned counsel for the appellants urged that the voucher is not a negotiable instrument.
Hence, the suit under Order XXXVII of the C.P.C. Was not maintainable. He further submitted that even if the voucher is held to be a negotiable instrument, the appellants, being not signatories thereto, are not liable under the law. Lastly, he submitted that no one was impleaded as a defendant by name. According to the learned counsel, appellant No, 1 was not liable in his official capacity. The suit, if any, could have been filed against the Sub-Treasury Officer, who was holding the post at the time of the presentation of the voucher for payment. On the other hand, the learned counsel for respondents Nos. 1 and 2 urged that the voucher was a negotiable instrument within the meaning of the law and could be termed as a cheque or bill of exchange because it is a document in writing assuring payment of the amount mentioned therein to the holder of the document. The learned counsel further submitted that the law did not require that the suit be filed only against the signatory of the document. What is required under Order XXXVII of the C.P.C. Is that the claim should be based on some negotiable instrument. On merits, the learned counsel urged that respondents Nos. 1 and 2 were entitled to the refund of the amount deposited by them as Zari- Panjam in the pre-emption suit. He pointed out that the withdrawal of the amount by Muhammad Yaqub was fraudulent and procured under the forged signature of the learned Civil Judge.
5. A suit based upon a bill of exchange, hundi or promissory note can be instituted under Order XXXVII C.P.C. Under summary procedure. The first question which needs to be determined is as to whether the vouches is a bill of exchange or negotiable instrument? A negotiable instrument has been defined in section 13 of the Negotiable Instruments Act, 1881, as under:-- "13. A "negotiable instrument" means a promissory note, bill of exchange or cheque payable either to order or to bearer."
A bill of exchange has been defined in the Negotiable Instruments Act, 1881, as under:-- "5. A "bill of exchange" is an instrument in writing containing an unconditional order, signed by the maker, directing a certain person 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 instrument."
The word "voucher" is derived from the word "vouch" which means to cite as authority to assert, declare or guarantee to be delivered. The word "voucher", according to the Shorter Oxford English Dictionary (Volume II, Page 2373) means "A piece of evidence; a fact, circumstance, or thing serving to confirm or prove something; a guarantee, a written document or note, or other material evidence, serving to attest the correctness of accounts or monetary transactions, to prove the delivery of goods or valuables, etc.. "According to Law Lexicon by Aiyer, the word "voucher" means "Document establishing payment of money or truth of accounts... Thus, the voucher issued by the Court is an instrument in writing which guarantees payment of certain amount to a specified person and can be legitimately treated to be a bill of exchange. A holder of a cheque, bill of exchange or other negotiable instrument may receive payment in due course and further negotiate in the manner provided by the Negotiable Instruments Act and may also sue on such instrument in his own name as laid down under section 57-B of the Act. Under the Treasury Rules (Punjab) Part I, contained in the Punjab Financial Hand Book No, 1, published by the Finance Department, Government of the Punjab, Lahore, Rule 4.129, relating to the form of voucher, reads as under:-- "4.129. (i) Form S.T.R. 41 shall be used for repayment order and voucher for deposits repaid. It may be filled in Urdu or English. The order should be signed by the Presiding Officer or Court or authority which ordered for the deposit into Government Treasury, after giving correct deposit number of voucher.
(ii) Each book of the Form S.T.R. 41 shall consist of 100 forms. All books shall be machine numbered by the Government Printing Press.
(iii) The books will be stocked in District Treasuries in Double Lock and shall be issued to Courts or other Authorities on their written request in accordance with the procedure prescribed for the issue of Cheque Books.
(iv) The books, on receipt from the Treasury shall be kept in personal custody of the officer competent to use the books.
(v) A deposit repayment voucher will not be entertained in a Treasury except on the forms of the book issued by the same Treasury.
(vi) Where a repayment voucher book has been requisitioned from District Treasury for use at sub- treasury within the same District, the Treasury Officer will intimate to the Sub-Treasury Officer about the issue of the book along with its number.
(vii) A deposit repayment voucher must in no case be prepared at the Treasury or Sub-Treasury. As a safeguard against fraud, the authority ordering repayment shall enter the name of the payee after the words "Passed for payment", thus "Passed for payment to--
(viii) Deposit repayment order will remain in force for a period of one month after which no repayment will be made on its authority unless it has been revalidated."
' Rule 4.147 relates to procedure at Treasuries in paying out money. It provides as under:-- "4.147. The bill or other voucher presented as a claim for money will be received and examined by the Accountant and if it is deficient in any of the following respects it should not be cashed but should be returned to the drawing officer for completion. Failure to do this is noted as an irregularity of the Treasury for inclusion in the annual review on the working of Treasuries.
(a) Prescribed form; (b) signatures, countersignatures and transliteration of vernacular signature;
(c) quotations of sanction or authority, where necessary; (d) affixing of receipts stamps where necessary; (e) arithmetical correctness of totals and calculations of broken periods; (f) attestation of alterations; (g) last pay certificates, and absentee statements for all officials on leave or deputations, attached; (h) printed instructions on reverse of travelling allowance bill forms strictly complied with. It should then be laid before the treasury Officer, who if the claim be admissible, the authority good, the signature true and in order, and the receipt a legal quittance, will sign the order for payment at foot of the voucher, taking care to adopt the precautions prescribed in Rule 4.7(c) above. Care should be taken that all bills and vouchers are passed for payment or returned with objection as expeditiously as possible."
Thus, it is clear that the voucher is a document which guarantees payment of the amount to the holder and if passed for payment, the payment of amount follows as a matter of course. Rule 4.151 provides that after the bill/cheque/voucher has been completely checked, entered in the accounts and payment order signed by the Treasury Officer, it may be delivered to the payee himself after proper B identification or to his authorized messenger holding his identity card bearing his attested photograph with the seal of the office concerned. After the voucher is passed, it is delivered to the payee for presentation at the bank for payment after proper identification. It is so laid down in Rule 4.156(f). Thus, the suit under Order XXXVII of the C.P.C. Relating to summary procedure filed by respondents Nos. 1 and 2 was competent.
6. It has been rightly urged by the learned counsel for respondents Nos.1 and 2 that the suit need not be filed necessarily against the signatory of the voucher or the bill of exchange. What is essential is that the claim made in the suit, whether against the signatory or any other person who can be held liable under the law, be based on a negotiable instrument, including a bill of exchange, cheque, promissory note or voucher. In the present case, respondents Nos. 1 and 2 had deposited Zar-i-Panjam amounting to Rs, 16,000 in the Government Treasury under the order of the Court. The Government as well as the Treasury Officer, being the employees of the Government, were bound to keep the said amount safely with them and refund it to the depositor or pay it to any other claimant under the order of the Court. The evidence on the record clearly shows that appellant No, 1 was negligent in payment of the amount to some Muhammad Yaqub under forged voucher bearing forged signature of the Civil Judge. A bare comparison of the signature of the learned Civil Judge borne on Voucher No, 20 dated 7-9-1986 with the admitted signature of the learned Civil Judge makes it clear that the signatures on Voucher No, 20 are forged. An F.I.R. Has already been lodged pertaining to the fraud committed in respect of several deposits including the present one and is being independently probed into by the concerned authorities. So far as respondents Nos. 1 and 2 are concerned, they are definitely entitled to receive the amount from the appellants. The claim could not be made against some named Officer because the amount was deposited in the Government Treasury through its employees or servants. Hence, the plaintiffs/respondents Nos. 1 and 2 could legally file a suit against the appellants for the recovery of the amount. The trial Court had rightly perused the evidence on the record and come to the conclusion that the plaintiffs were entitled to a decree in their favour. I do not find any legal infirmity in the impugned judgment and decree of the trial Court and uphold the same.
7. Resultantly, this appeal fails and is dismissed with costs.