2013 C L C 640

2013 C L C 640

[Sindh]

Before Abdul Rasool Memon, J

WAJI QAMAR-UZ-ZAMAN----Applicant

Versus

NAZIMUDDIN AHMED----Respondent

C.M.A. No.903 of 2011 and Civil Revision Application No.49 of 2011, decided on 25th September, 2012.

(a) Civil Procedure Code (V of 1908)---

----S. 12(2), O. XXXVII, Rr. 2 & 3---Suit for recovery of money on basis of document having title of promissory note but also containing the word agreement in its contents---Application for grant of leave to defend suit---Defendant's plea that such document filed was not negotiable instrument, thus, suit on its basis under O.XXXVII, R.2, C.P.C. was not maintainable---Non-appearance of defendant in court after grant of conditional leave resulted in passing of decree by Trial Court on 31-8-2006---Defendant's application under S.12(2), C.P.C. filed on 20-10-2012 for setting aside such decree alleging same to be without jurisdiction---Plaintiff's plea that application under S.12(2), C.P.C. was barred by time---Dismissal of application under S.12(2), C.P.C. by Trial Court---Validity---Defendant had disputed jurisdiction of Trial Court at very initial stage and also after passing of impugned decree through application under S.12(2), C.P.C.---Regarding document in question, which was claimed by the plaintiff to be a negotiable instrument, Trial Court had not given any specific findings neither while assuming jurisdiction under summary chapter nor while dismissing application under S.12(2), C.P.C.---Question whether Trial Court had jurisdiction to pass impugned decree, if found to be correct, would mean that the whole edifice built on such defective proceedings was bound to crumble down---Limitation would not run against a void order, rather same could be ignored and might not be allowed to stand   thereagainst---High Court remanded case back to Trial Court to decide question as to whether such document fulfilled requirement of being a promissory note under law.

            Government of Sindh through Chief Secretary and others v. Khalil Ahmed and another 1994 SCMR 782; Government of N.-W.F.P. and others v. Akbar Shah and others 2010 SCMR 1408; National Bank of Pakistan v. Khairpur Textile Mills Ltd. and others 2001 CLC 1187; Iffat Jabeen v. District Education Officer (MEE), Lahore and another 2011 SCMR 437; Executive District Officer Schools and Literacy, District Dir Lower and others v. Qamar Dost Khan and others 2006 SCMR 1630; Almas Ahmad Fiaz v. Secretary Government of the Punjab Housing and Physical Planning Development Lahore and another 2006 SCMR 783 and Jamil Ahmad Sheikh and another v. District Officer (Revenue), Kasur PLD 2006 Lah. 597  ref.

            Khyber Tractors (Pvt.) Ltd. through Manager v. Pakistan through Ministry of Finance, Revenue and Economic Affairs, Islamabad PLD 2005 SC 842  rel

(b) Jurisdiction---

----Question of---Duty of Court/Tribunal---Scope---Mandatory for Court/Tribunal to attend and decide at first instance such question even if same was not raised by a party to suit---Order passed or act done by court/tribunal not having jurisdiction to entertain suit would be without jurisdiction---Such question could be raised even at a subsequent stage.

            Izhar Alam Farooqi, Advocate v. Sheikh Abdul Sattar Lasi and others 2008 SCMR 240  rel.

(c) Void order----

----Limitation against---Scope---Limitation would not run against a void order, rather same could be ignored and might not be allowed to stand thereagainst.

            Masood Anwar Ausaf for Applicant.

            S. Irtaza H. Zaidi for Respondent.

            Date of hearing: 6th September, 2012.

ORDER

            ABDUL RASOOL MEMON J.--- By way of this Revision Application  the  applicant  has  called  in  question  the  order  dated  24-12-2010 passed by 5th Additional District Judge, Karachi South in Civil Suit No.22 of 2004 whereby he has dismissed an application under section 12(2), C.P.C. moved by the applicant/defendant-judgment-debtor.

2.         The facts of the case are that the respondent filed a summary suit for recovery of Rs.15,40,000/- under Order XXXVII, Rule 2, C.P.C. pleading therein that the respondent and the applicant are related to each other and the applicant had borrowed a sum of Rs.15,40,000/- under an agreement executed between them on 19-5-2001 and the value of the amount as per foreign exchange into Pak rupee was to be adjudged at the prevailing rate on 14th May and 15th May, 2001 which was 64.10 and the amount was to be returned into US currency. As per said agreement, the applicant had agreed for payment of profit at five percent per months from 19-5-2001 till the payment is made. Another agreement/promissory note was also executed between the parties on   18-6-2001 whereby another sum amounting to US$ 450 was borrowed by the applicant from the respondent and a sum of Rs.500,000/- was also received by the applicant under receipt on 6-8-2001. The respondent/plaintiff in the suit has prayed for passing the decree in his favour against the applicant/defendant for return of amount of Rs.15,40,000/- along with profit at the rate of five percent per month till the date of its realization. The present applicant/defendant filed an application under Order XXXVII, Rule 3, C.P.C. taking the plea that the three documents on the basis of which the suit is filed are not negotiable instruments as envisaged in the Negotiable Instruments Act, 1881 and so also as defined in the Stamp Act, 1899, therefore, the above suit cannot be treated under summary chapter under Order XXXVII, Rule 2, C.P.C.

3.         The applicant/defendant filed counter-affidavit to the said application for leave to defend and vide order dated 6-1-2005 the said application was allowed to defend conditionally.

4.         As per applicant/defendant his Advocate was in serious health condition and finally expired on 20-4-2006 and could not attend the court on behalf of the applicant nor informed the applicant regarding progress of the case as the applicant was residing at Rawalpindi.

5.         Thereafter, the respondent filed his affidavit in evidence and then the suit was decreed vide judgment dated 31-8-2005 and the decree dated 30-9-2005 and thereafter the execution application was filed and the applicant on receipt of the notice came to know about the judgment and decree and then he filed an application under section 12(2), C.P.C. for  setting  aside  such  decree  of  the  trial  Court  which  too  was dismissed.

6.         The learned counsel for the applicant has argued that the applicant/defendant since beginning had taken the plea before the trial Court that the documents/agreements which are placed on record for the purpose of suit under Order XXXVII, Rule 2, C.P.C. does not come within the meaning of promissory note and so also such documents are not stamped properly as required under the Stamp Act, 1899 and even on the face of these documents it is clear that the same are simple agreements for which the suit under summary chapter could not be maintained. He contended that the trial Court at the time of judgment did not consider the said legal point and has wrongly assumed the jurisdiction under Order XXXVII, Rule 2, C.P.C. and as such this question of jurisdiction goes to the very root of the case. He has argued that even by consent the Court cannot assume the jurisdiction, if there is none and it is mandatory for the Court to decide the question of jurisdiction  at  the  first  instance  even  though no  objection  was raised by the parties to the jurisdiction of the Court. He has further contended that this question of the jurisdiction was also raised by the applicant in the application under section 12(2) but the trial Court did not give any consideration to it and without applying its mind has proceeded to dismiss the application. He has contended that the documents/ agreements which are being claimed by the respondent as promissory note on the face of it cannot be termed as promissory note and are void agreements for the purpose of promissory note, therefore, bar of limitation could not be pleaded for setting aside a decree based on such agreements. In support of his contentions he has relied on the following judgments.

(1)        GOVERNMENT OF SINDH THROUGH CHIEF SECRETARY and others v. KHALIL AHMED and another (1994 SCMR 782)

(2)        GOVERNMENT OF N.-W.F.P. and others v. AKBAR SHAH and others (2010 SCMR 1408)

(3)        NATIONAL BANK OF PAKISTAN v. KHAIRPUR TEXTILE MILLS LTD. and others (2001 CLC 1187)

(4)        IFFAT JABEEN v. DISTRICT EDUCATION OFFICER (MEE), LAHORE and another (2011 SCMR 437)

(5)        EXECUTIVE DISTRICT OFFICER SCHOOLS AND LITERACY, DISTRICT DIR LOWER AND OTHERS v. QAMAR DOST KHAN and others (2006 SCMR 1630)

(6)        IZHAR ALAM FAROOQI, ADVOCATE v. Sheikh ABDUL SATTAR LASI and others (2008 SCMR 240)

(7)        KHYBER TRACTORS (PVT.) LTD. through Manager v. PAKISTAN through Ministry of Finance, Revenue and Economic Affairs, Islamabad (PLD 2005 SC 842)

(8)        ALMAS AHMAD FIAZ v. SECRETARY GOVERNMENT OF THE PUNJAB HOUSING AND PHYSICAL PLANNING DEVELOPMENT LAHORE and another (2006 SCMR 783)

(9)        JAMIL AHMAD SHEIKH and another v. DISTRICT OFFICER (REVENUE), KASUR (PLD 2006 Lahore 597),

7.         The learned counsel for the respondent/plaintiff has argued that the appellant knowingly did not contest the suit though he was granted permission to defend unconditionally but even then he did not file written statement and thereafter the evidence of the plaintiff was recorded and the defendant failed to appear and his side was closed on 31-5-2005 and after hearing the parties the trial Court passed the judgment and decree. He has further contended that no sufficient ground was given to the trial Court for invoking his jurisdiction under section 12(2), C.P.C. He has argued that the present application under section 12(2) C.P.C. was hopelessly time-barred. He has contended that no ground has been made out by the applicant for exercising revisional jurisdiction of this Court and the revision application is not maintainable and be dismissed.

8.         I have given careful consideration to the arguments advanced by the counsel for both the parties and gone through the relevant case-law. For the sake of convenience section 12(2), C.P.C. is reproduced as under:---

12.       Bar to further suit.--- (1) Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which the Code applies.

(2)        Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit. (underlining is mine)

9.         From a perusal of the above provision it is clear that apart from the plea of fraud and misrepresentation for want of jurisdiction also these provisions can be invoked. A careful perusal of the application of the applicant under Order XXXVII, Rule 3, C.P.C. it appears that in the application filed before the trial Court the applicant has challenged the documents/promissory notes and taken the ground that such documents do not come within the meaning of promissory note, Hundi or bill of exchange. For convenience sake I also reproduce the contents of para No.2 of the application under Order XXXVII, Rule 3, C.P.C. filed by the applicant/defendant:---

"The plain reading of the plaint reveals that the documents on which the suit is formed or neither negotiable instruments as envisaged in the Negotiable Instruments Act so also as defined in the Stamp Act therefore the above suit cannot be treated under the short causes suits and cannot be dealt with the provision of summary chapter under Order XXXVII, C.P.C.

10.       Perusal of the judgment dated 31st August, 2006 passed by the trial Court reveals that the learned Vth Additional District Judge, Karachi South did not give any specific findings for the documents produced by the respondent/plaintiff claiming to be the negotiable instruments for assuming the jurisdiction under the summary chapter. Thereafter, an application under  section  12(2),  C.P.C.  was  filed  on  20-10-2012 and in that application too specific ground was taken by the applicant challenging the documents again taking the .ground that the Court has no jurisdiction under Order XXXVII, Rule 2, C.P.C. to adjudicate upon the matter as the documents/agreements purported to be promissory note do not fulfil the requirement of bill of exchange, Hundi or promissory note as required under the law. But the Vth Additional District Judge while dismissing the application under section 12(2), C.P.C. even did not touch this point of jurisdiction and proceeded to hold that the applicant/defendant did not contest the suit and dismissed the application under Order 12(2) C.P.C. without giving any finding as to whether the documents on the basis of which the suit was filed can be termed within the meaning of promissory note for assuming the jurisdiction or not.

11.       I am of the considered opinion that it is mandatory for the Court to decide at the first instance the question of jurisdiction even though such question was not raised by a party to the suit. This view is fortified in the case of Izhar Alam Farooqui Advocate (supra). Similarly, there can be no exception to the principle that an order passed or act done by a Court or Tribunal not competent to entertain the suit is without jurisdiction and it is mandatory for the Court or the Tribunal as the case may be, to attend the question of jurisdiction at the commencement of trial or enquiry and even it can be raised at a subsequent stage. In the instant case the jurisdiction of the Court was disputed on the very initial stage and after passing of judgment and decree the same ground was taken in the application under section 12(2), C.P.C., but the Court did not adhere to this objection. I have looked into the documents which are dated 19-5-2001, June 18, 2001 and receipt dated 6-8-2001 on the basis of which the suit has been filed by the respondent. From the perusal of the construction of the first two documents it appears that these two documents have been given the title of promissory note but in the contents of these two documents the word agreement is also used, therefore, the question whether these documents come within the meaning of promissory note and fulfil the requirements of being a Bill of Exchange, Hundi or promissory note as required under the law, require consideration and appreciation by the Court.

12.       Now coming to the argument of the learned counsel for the respondent that the very application under section 12(2), C.P.C. is time-barred, it is very important to note that the question of jurisdiction of the Court has been challenged and if it is found correct on merits then the whole edifice built on such defective proceedings is bound to crumble down. This dicta is laid down in the case of Khyber Tractors (Pvt.) (supra). I am also fortified with the view that where the very judgment and decree would become void, limitation does not run against the void order and the point of limitation can even be ignored and limitation may not be allowed to stand against such order. This principle is laid down in the case of NATIONAL BANK OF PAKISTAN (quoted supra).

13.       In view of my above discussion I allow this revision application and remand the case back to the learned Vth Additional District Judge, Karachi South to frame the following preliminary issues:

            Whether the documents dated 19-5-2001 and 18-6-2001 and receipt dated 6-8-2001 filed by the respondent with the plaint fulfill the requirement of being promissory note as required under the law and its effect?

and after giving both the parties proper opportunity of leading their evidence, if any, and hearing the arguments decide the above issue as preliminary issue.

SAK/W-13/K                                                                                      Case remanded.