AAMAR TUFAIL vs MUHAMMAD SADIQ and others

' MUHAMMAD JEHANGIR ARSHAD, J.---The appellant who was plaintiff before the learned trial Court is aggrieved of the judgment and decree dated 29-3-1992 whereby the suit filed by him for the recovery of Rs,7,60,000 on the basis of some pro note dated 22-4-1987 was dismissed by the learned Additional District Judge, Sahiwal.

2. The facts in brief are that appellant filed a suit before the learned trial Court on 21-8-1988 claiming that Muhammad Sadiq defendant/predecessor in interest of the present respondents had cordial relations with him and both the parties had also financial understanding with each other. In the month of April, 1987, the said deceased defendant approached the appellant for financial assistance for some personal need, as such the appellant/plaintiff extended him a loan of Rs,7,60,000 on 22-4-1987 and in token thereof Muhammad Sadiq executed a pro note and receipt on the same day, It has been further averred in the plaint that as Muhammad Sadiq failed to pay back the loan amount, hence, the appellant was constrained to file the suit in summary jurisdiction for the recovery of said amount. On an application moved by deceased defendant, he was allowed to appear and defend the suit by the learned trial Court on 8-1-1989 subject to the condition of filing of security equal to the suit amount within fifteen days and suit was adjourned for 24-1-1989 for filing of written statement. It appears that after the compliance of above mentioned condition, Muhammad Sadiq died and an application was moved on behalf of his legal heirs (present respondents) seeking dismissal of the suit on the ground that deceased had left no heritable estate. The said application was dismissed by the learned trial Court on 19-10-1989 holding that since the deceased had left certain amount as estate, therefore, the suit was still maintainable against the respondents being heirs of the deceased to the extent of estate left by the deceased.

Thereafter, on receipt of written statement, the learned trial Court framed the following issues:-- ' ISSUES:--

(1) Whether the pro note in question is forged, fictitious and without consideration? OPD.

(2) Whether the deceased defendant now succeeded by the legal representatives on record was liable to pay the said amount to the plaintiff? OPP.

(3) Relief.

' The case was fixed for recording evidence of the appellant. In the meanwhile, another application of the respondents seeking decree of the suit to the extent of known estate of the deceased also stood dismissed by the learned trial Court on 31-3-1990. However, after recording evidence, the learned trial Court vide judgment and decree dated 29-3-1992 dismissed the suit. Hence, this R.F.A.

3. Before this Court,, it is argued by Chaudhry Muhammad Iqbal Abid, Advocate learned counsel for the appellant that the learned trial Court dismissed the suit, firstly by holding that as the pro note was neither attested by two witnesses as required by Article 17 of the Qanun-e-Shahadat Order nor two witnesses have been produced within the meaning of Article 79 of Qanune-Shahadat Order, hence, the same could not be used in evidence and secondly that the evidence of P.Ws. Was not confidence-inspiring, therefore, was not relied upon by the learned trial Court. The contention of the learned counsel for the appellant is that as pro note Exh.P.1 as defined by section 4 of the Negotiable Instruments Act is not required to be attested by any witness, therefore, the learned trial Court was not justified in excluding the same from consideration by applying provisions of Articles 17 and 79 of Qanun-e-Shahadat Order. On merits, it has been argued by the learned counsel that the findings recorded by the learned trial Court cannot be considered as a judgment at all, as the same neither refers to the evidence nor is in consonance with the provisions of Order XX, rule 5, C.P.C. In support of this contention, the learned counsel has placed reliance on the case of Zaheer- udDin Sheikh v. Shatab Khan Nasim NLR 1994 AC 661 and Mst. Sughran Begum and 11 others v. Haji Mir Qadir Bakhsh and 2 others PLD 1986 Quetta 232.

4. On the other hand, Ch. Ghulam Muhammad, Advocate appearing on behalf of the respondents has supported the findings of the learned trial Court and by placing reliance on the cases of "Muhammad Nawaz v. Abdul Sattar" PLD 2000 Lahore 1619 and "Maqsood Ahmad and others v.

Salman Ali" PLD 2003 Supreme Court 31 has contended that pro note being a document creating future obligation, was thus required to be attested by two witnesses in terms of Article 17 of Qanune-Shahadat Order and the execution of the same could only be proved by producing at least two witnesses as required by the said Article. Further contends that the learned trial Court rightly decided Issues Nos.1 and 2 against the appellant/ plaintiff after proper appraisal of evidence produced by the parties.

5. We have considered the arguments of learned counsel for the parties, gone through the record and also perused the cited case-law.

6. The first question requiring determination is as to whether a pro note is a document which requires attestation of two witnesses within the contemplation of Article 17 of Qanune-Shahadat Order? We have gone through the case-law cited by both the parties. We are not persuaded to agree with the findings of the learned trial Court as well as the arguments of learned counsel for the respondents that pro note Exh.P.1 is a document which requires attestation by two witnesses within the meaning of Article 17 of Qanun-e-Shahadat Order, for the simple reason that a transaction through pro note is governed by Special Law i,e, Negotiable Instruments Act and section 4 of the said Act defines the Promisory Note as under:-- "Promisory Note.---A "Promisory 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 quite clear requiring no witness to testify the Promisory Note and obviously for the reason that Promisory Note is a promise by its maker for the payment of amount received under Negotiable Instruments Act and in case if the same requires certain attestation, the very nature of the instrument i,e, Promisory Note would become a bond. At this stage reference to the following definition of "Bond" as given in section 2(5) of the Stamp Act, 1899 would not be inapt for the proper understanding of difference between the Promisory Note and a Bond:-- "(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."

In terms of clauses (b) and (c) of above definition, it is clear that Bond is also a promise made by its maker but to be attested by witnesses, whereas, the definition of Promisory Note as given in Negotiable Instruments Act, though also says that same is a promise by its maker yet does not require that the same be attested by witnesses. We are supported in our view by a Division Bench judgment of Quetta High Court reported in "Mst. Sughran Begum and 11 others v.

Haji Mir Qadir Bakhsh and 2 others" PLD 1986 Quetta 232 and have no hesitation in holding that in the absence of requirement of attestation by law i,e, Negotiable Instruments Act, a Promisory Note requires no attestation of witnesses and thus is neither covered by Article 17 of the Qanun-e- Shahadat Order which is a general law nor non-production of at least two witnesses to prove the execution of pro note was fatal for making the same admissible in evidence. The judgment of this Court in "Zaheer-ud-Din Sheikh v. Shatab Khan Nasim" NLR 1994 AC 661 is also to the same effect.

7. As regards the case-law cited by learned counsel for the respondents i,e," Maqsood Ahmad and others v. Salman Ali" PLD 2003 Supreme Court 31, the same is not applicable to the present case as the dispute in the said case was of execution of General Power of Attorney and not of Promisory Note. -however as far as the judgment delivered in "Muhammad Nawaz v. Abdul Sattar" PLD 2000 Lahore 1619 is concerned, we are not persuaded by the same on the ground that said judgment is based on a Division Bench judgment of this Court in " Abdul Khaliq v. Muhammad Asghar Khan and 2 others" PLD 1996 Lahore 367 and the matter in dispute in the said judgment was about validity of agreement to sell in the absence of attesting witnesses and by analogy the said judgment of Division Bench has been applied by the learned Single Judge in the case "Muhammad Nawaz v.

Abdul Sattar" PLD 2000 Lahore 1619 holding the pro note a document requiring attestation of two witnesses. The question whether attestation of two witnesses was legal requirement of pro note under Negotiable Instruments Act was neither raised nor considered by the learned Single Judge in his judgment. We, therefore, find force in the contention of learned counsel for the appellant that the learned trial Court was not right in excluding the disputed pro note from consideration either for want. Of attesting witnesses in terms of Article 17 of Qanun-e-Shahadat Order or for non- production of two witnesses for its proof as required by Article 79 of the said Order.

8. As regards the second contention of learned counsel for the appellant that the learned trial Court while recording its findings on merits of the case has neither fully discussed the evidence nor has passed the said judgment within the meaning of Order XX, rule 5, C.P.C., we have gone through the said findings of the learned trial Court and find substantial force in the said contention of the learned counsel. The findings of the learned trial Court on merits as discussed in para.16 of the impugned judgment neither can be considered a reasoned judgment nor the same fulfils the requirement of Order XX, rule 5, C.P.C.

9. Resultantly, this appeal is allowed, the impugned judgment dated 29-3-1992 is set aside and case is remitted to the learned trial Court for deciding the same afresh by proceeding from the stage of hearing final arguments of both the parties and recording fresh judgment, in accordance with law. The parties are directed to appear before the learned District Judge, Sahiwal on 23-11- 2005.