Order XXXVII Rule 2 of the “CPC” envisages that a suit can be instituted in a summary character on the basis of bills of exchange, hundies or promissory notes. As the cheque is a negotiable instrument under the Negotiable Instrument Act, 1881 and without negotiation of the parties on an agreement, no such suit could be filed. When confronted to counsel for the Respondent, whether he has copy of agreement, he stated that he does not have such copy however, the same will be produced before the trial Court if an opportunity is provided. He further stated that the Appellant was the employee of the Respondent who misappropriated certain amount as a result whereof criminal cases were registered against him during the proceedings of which, he agreed to pay certain amount as per agreement between the parties which shows the relationship for filing of suit. We have examined the judgment and observed that the Respondent has only exhibited three documents (Exh.P1 to Exh.P3), mentioned above. It has been held in a number of cases that suit under Order XXXVII of the “CPC” has to be filed alongwith supporting negotiable instruments of the parties, instrument through a contract or through any relationship, which must be express, implied or in written form or oral. At this stage, learned counsel for the Respondents requested some time to file the agreement before the trial Court. It is settled law that for the purpose of filing suit there has to be a relationship between the parties as has been held by the Supreme Court of Pakistan in “Mehr NOOR MUHAMMAD Versus NAZIR AHMED” (PLD 2024 Supreme Court 45) wherein it has held that “the plaintiff, in his cross-examination, admitted that he had no business relationship with the defendant or family ties with him. This statement causes eyebrows to be raised as given a fillip to ponder how the plaintiff could lend a considerable amount to a stranger”. In another pronouncement cited in “TELENOR MICROFINANCE BANK LIMITED Versus SHAMIM BANO and others” (2023 SCMR 1560) it has held that “where a person signs an instrument otherwise than as a maker, drawer or accepter, he incurs the liabilities of an indorser to a holder in due course. However, if there is ambiguity as to the capacity in which a party signed an instrument, the whole facts and circumstances attendant upon the making, issue and transfer of the instrument may be legitimately referred to for the purpose of ascertaining the true relation of the parties to each other; and reasonable inferences, derived from these facts and circumstances are admitted to the effect of qualifying, altering or even inverting the relative liabilities which the law merchant would otherwise assign to them”. Moreover, in “CHAND BAGH FOUNDATION through Authorized Representative Versus STANDARD CHARTERED BANK LIMTIED through Manager and another” (PLD 2011 Lahore 473), it has held that “the reasons given by the learned trial Court for dismissing the suit of the appellant namely absence of relationship of debtor and creditor and existence of a loan, are neither sustainable nor in line with dicta of the Supreme Courts”. When further confronted to counsel for the Appellant whether the Appellant had submitted surety bond as directed in aforesaid order, he stated that the Appellant could not furnish surety bond due to his poor financial position and incapacity at that time, however, he is now ready to furnish surety bond.
چیک کے غلط استعمال کے سد باب بارے لاہور ہائی کورٹ کے جج جسٹس جواد حسن اور جسٹس ساجد محمود سیٹھی پر مشتملبنچ کا ایک تاریخی فیصلہ !
R.F.A.20-24
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