FARID AKHTAR HADI Versus MUHAMMAD LATIF GAZI

1. This Revision Application is directed against the order of the learned IVth Additional District Judge (South) Karachi, whereby he granted leave to respondent to defend the suit without any condition on the ground, that the respondent had contended, that document, on which suit was based, was not promissory note but was a bond and as such suit under Order XXXVII, C.P.C. was not maintainable.

2. I have heard Mr. Faiq Hussain Rizvi, learned counsel for the applicant and the respondent in person, and I have also perused the original document on the basis of which the suit is filed. The impugned order of the learned IVth Additional District Judge is very short. He has not given detailed reasoning as to why he prima facie considered) the document to be a bond. The document no doubt is attested by two witnesses but that fact alone may not be sufficient to hold, that: A it is a bond. Bond has been defined in section 2(b) of Stamp Act. Clause (b) of the said section would be relevant which reads as under:‑

3. "2(5) Bond includes .....

(a) ??????? ............................................................

(b) ??????? any instrument attested by a witness and not payable to order or bearer, whereby a person obliges himself to pay money to another."

4. One of the prerequisites of the document, that can be considered as a bond is, that it should not be payable to order or the bearer. The instrument in question provides, that the amount would be payable to the promisee or to any other person whom he authorises. Thus, prima facie the amount under this instrument is payable to order or. to the bearer. In order to determine as to whether a particular document is a promissory note or a bond, the intention of the parties is a very necessary circumstance to be taken into consideration and it must be seen, whether the parties intended that the document should be negotiable or that it was merely to serve as evidence of the debt.

5. However, the question at issue is not whether the document is a bond, but the real question at issue is whether the document is a promissory note. Promissory note has been defined in section 4 of the Negotiable Instruments Act (XXVI of 1881) as 'instrument in writing 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 or to the order of a certain person, or the bearer of the instrument."

6. The first para of the instrument in question is acknowledgment by the respondent to have received the loan of amount mentioned therein from the plaintiff. In the second para the ? respondent haspromised to pay on demand the same to the promisee or to any person to whom he desires, on demand. However, another condition is mentioned in this para, that some time would be required for the! payment. This condition does not show, any definite or determinable date by which the promisor undertook to pay the amount to the promisee. Therefore, this document prima facie does not appear be unconditional undertaking. However, it will be only after parties lead evidence that Court can determine as to what was the intention of the parties in executing this document and what was the purpose for putting above‑mentioned condition in the document. A very important triable issue has been raised by the respondent which touches the maintainability of the suit under Order XXXVII, C.P.C. and as such the respondent is entitled leave to defend the suit without any condition.

7. Consequently, for aforesaid reasons I dismiss this revision application, and maintain the order of the learned trial Court allowing the defendant leave to defend the suit without any condition.,

8. H . B . T . /F‑82/ K ????????????????? Revision dismissed.