NAEEM IQBAL vs Mst. ZARINA

1. ' MUKHTAR AHMED JUNEJO, J.---Petitioner Naeem Iqbal has moved for leave to appeal against the judgment dated 30-11-1994 delivered by the High Court of Sindh in Civil Revision No,327 of 1994.

2. ' Respondent Mst. Zarina filed a summary suit on the basis of a pronote against the petitioner in a Court at Karachi for recovery of Rs,50,000. In response to being served with summons, the petitioner appeared through his counsel in the trial Court but instead of seeking leave to defend the suit, he filed his written statement. Consequently the suit was decreed on 20-1-1992. No appeal was preferred against the judgment and the decree.

3. ' During execution proceedings, the petitioner filed objections to the effect that he had neither borrowed any money from the respondent nor had executed any promissory note in her favor. The petitioner blamed his counsel, for failure to move for leave to defend. Such objections were not purstwd and the same were overruled on 24-9-1993. On 27-10-1993 the petitioner moved an application in the trial Court under section 114, C.P.C. Read with section 12(2), C.P.C. For review/recall/set aside of the orders dated 22-5-1993 and the judgment and the decree passed in the summary suit. He also challenged the order about realization of detrital amount from his salary.

4. The main grounds taken by the petitioner in his application dated 27-10-1993 were that the judgment and the decree against him had been obtained by fraud and misrepresentation, that the promote dated 6-9-1990 contained his forged and fabricated signatures as he was on duty at Peshawar from 1-9-1990 to 10-1-1990 and that the promote was without consideration and beyond the ambit of Negotiable Instruments Act as well as Order XXXVII, C.P.C. Said application was opposed by the respondent and it was dismissed by an Additional District Judge under an order dated 1-8-1994. The petitioner invoked jurisdiction of the High Court under section 115, C.P.C. By filing a Civil Revision application which was dismissed under the impugned judgment. Hence this petition.

5. ' Mr. M. Ismail Qureshi, learned counsel for the petitioner argued that the promissory note in question was a forged document and on the basis of such document the suit could not have been decreed. He further argued that the learned Court of Additional District Judge who decreed the suit, lacked jurisdiction because the said pro note was not covered by the definition of pro-note given in the Negotiable Instruments Act, and consequently the provisions contained in Order XXXVII, C.P.C.

6. Were inapplicable to this case. It was also argued that the respondent had obtained the decree by fraud and misrepresentation of facts and that the trial Court lacked jurisdiction.

7. ' We have gone through the promote and do not agree with the learned counsel for the petitioner that it is not covered by the definition of negotiable instrument as defined in the Negotiable Instruments Act. It is unfortunate that after being properly served with the process, the petitioner did not move an application under Rule 3 of Order XXXVII, C.P.C. For leave to appear and defend the suit. As per sub-rule (2) of Rule 2 of Order XXXVII, C.P.C., if a defendant after being served with summons of a summary suit, does not obtain leave to appear and defend the suit, the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree. It was in pursuance of aforesaid provisions that the suit was decreed in favor of the plaintiff on 20-1-1992.

8. ' We are not impressed by the contention that the trial Court lacked jurisdiction or that the document in question which was basis of the suit, was not a promissory note, in light of the provisions contained in the Negotiable Instruments Act. The petitioner could have challenged genuineness of the pro-note had he obtained leave to defend the suit. His allegations that the document in question is not a genuine one, does not take it out from the definition of negotiable instrument under the Negotiable Instruments Act.

9. For the foregoing reasons, we decline leave to appeal and dismiss this petition.