Sughra Bibi etc Vs Tahir Hayat

Stereo. H C J D A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT AT LAHORE.

JUDICIAL DEPARTMENT

RFA No. 63446 of 2020 Sughra Bibi etc.

VERSUS

Tahir Hayat

JUDGEMENT

Date of Hearing: 11.03.2026 Appellants by: Mr. Muhammad Awais Riaz, Advocate.

Respondent by: Muhammad Zeeshan Zafar Assisted by Laraiba Majeed, Amina Karim and Javid Hassan Zaidi Advocates.

KHALID ISHAQ, J. This Regular First Appeal filed under section 96 of the Code of Civil Procedure, 1908 (“CPC”) calls into question the judgment and decree dated 04.11.2020 (“Impugned Judgment”), whereby, the Respondent/Plaintiff’s suit filed under Order XXXVII, Rule 1 and 2 of Code of Civil Procedure, 1908 (“CPC”) for recovery of Rs.33,00,000/- (“Suit”), was decreed with costs as prayed for.

2.The facts of the case, as culled out from the plaint are that one Farman Ali (predecessor in interest of the Appellants/Defendants) borrowed an amount of Rs.46,00,000 from the Respondent/Plaintiff and also executed an Iqrarnama alongwith a Pronote dated 28.03.2016 in favour of the Respondent/Plaintiff settling that in case of death of said Farman Ali, his legal heirs i.e. Appellants/Defendants, would be bound to pay the borrowed amount; the return of the borrowed amount was delayed and upon repeated requests, the said Farman Ali issued five Cheques, collectively amounting to Rs.46,00,000/- (the “Cheques”); two Cheques, each amounting to Rs.5,00,000/- were encashed, whereas, the remaining three Cheques were presented by the Respondent/Plaintiff before the concerned bank for encashment during the lifetime of the said Farman Ali but the same were repeatedly dishonored/returned due to insufficient funds. As the fate would

have it, the said Farman Ali died in a road accident in February, 2017. It is pertinent to point out here that an amount of Rs.3,00,000/- from the total remaining payable amount of Rs.36,00,000/- has admittedly been paid. After the death of Farman Ali, the Respondent/Plaintiff demanded return of his remaining amount i.e. Rs.33,00,000/- from the Appellants/Defendants (LRs of Farman Ali), who delayed the matter on one pretext or the other and finally refused to return the amount. Hence the Suit was filed on 28.08.2017.

3.Pursuant to the summons issued, the Appellants/Defendants appeared and traversed the averments of the Plaint by submitting application for leave to defend, which application was allowed vide order dated 02.01.2018; the Appellant/Defendant contested the Suit and sought dismissal of the same.

4.After the exchange of pleadings, following issues were framed:

i. Whether the predecessor in interest of the defendants borrowed Rs.46,00,000/- from the plaintiff and regarding payment of said amount, he issued cheque No.10013322, dated 05.07.2016 valuing Rs.10 lac, cheque No.10013323 dated 25.07.2016 valuing Rs.5 lac, cheque No.10013324 dated 10.08.2016 valuing Rs.10 lac, cheque No.10013326 dated 15.08.2016 valuing Rs.16 lac & cheque No.10013325 dated 20.08.2016 valuing Rs.5 lac, of Al-Habib Bank, katchry branch, Bhalwal (out of which cheque No.10013323 dated 25.07.2016 valuing Rs.5 lac and cheque No.10013325 valuing Rs.5 lac have been encashed) which were dishonored by the concerned bank on presentation ? OPP ii. Whether the predecessor of the defendants executed a pronote dated 28.03.2016 in favour of the plaintiff for the satisfaction of the borrowed amount ?OPP iii. Whether the plaintiff is entitled to recover Rs.33 lac from predecessor of defendants as prayed for ?OPP iv. Whether plaintiff has no cause of action and he has come the court with unclean hands ?OPD v. Whether suit is not proceedable in its present form and suit is liable to be dismissed u/o 7 rule 11 CPC ?OPD vi. Whether predecessor in interest of defendants did not borrow any amount and present suit is filed by concocting a forged story ?OPD vii. Whether predecessor in interest of defendants purchased citrus orchard from plaintiff in the year 2014 and he paid all the dues and cheques in question were delivered as entrustment and

after his death defendant has used the same by filing instant suit ?OPD viii. Whether pronote is false and forged and no such pronote was executed by predecessor in interest of defendants ?OPD ix. Whether suit is liable to be dismissed with special costs? OPD x. Relief.

5.The trial of the case commenced and evidence was led; the Respondent/Plaintiff got examined as many as six (06) witnesses i.e. PW-1 to PW-6 and also tendered documentary evidence Exh.P1 to Exh.P10.

6.In defence, Appellants/Defendants produced two (02) witnesses (DW-1 & DW-2) and also produced documentary evidence in the form of copies of pages of ledger (detailed in the Impugned Judgment) as Mark-A.

7.After appreciating the evidence led by both sides and while rendering findings on the above-mentioned issues, the learned Additional District Judge, Sargodha (“Trial Court”) decreed the Suit vide the Impugned Judgment. Hence this Appeal.

8.Although the Appellants/Defendants outrightly denied any liability of their predecessor in interest (Farman Ali) and attempted to dispel the Cheques as well as other documents as non-existent, fake and fraudulent, however, during the course of arguments before this Court, the main thrust of the submissions of learned counsel for the Appellants/Defendants remained premised on the provisions contained in Sections 29 & 29A of the Negotiable Instrument Act, 1881 (“Act, 1881”); learned counsel for the Appellants/Defendants contends that since none of the Appellants/Defendants have signed the Cheques, which have been made basis for filing the Suit, therefore, they are not liable to pay any amount as they are neither makers, drawers, indorsers or acceptors of the Cheques in question. It is further argued by learned counsel for the Appellants/Defendants that appellant Nos. 3 to 6 are minors, therefore, no liability can be fastened upon them, thus, the Impugned Judgment is contrary to law. It is contended that as a matter of fact, the predecessor in interest of

the Appellants/Defendants (Farman Ali Deceased) had purchased a citrus orchard from the Respondent/Plaintiff for a total consideration of Rs.73,00,000/- and the entire amount was duly paid during his lifetime. In order to substantiate his submissions, Rule 2, learned counsel has referred to various pages of the ledger, which was produced as Mark-A; lastly it is argued that a summary suit Under Order XXXVII, CPC is a special remedy, which can only be pressed against a person, who is directly liable on the basis of his/her execution of a negotiable instrument and the liability under the negotiable instrument, if any, cannot be extended and stretched, by implication, against the legal heirs of executant of negotiable instrument(s) through a summary suit, therefore, as pleaded by the learned counsel for the Appellants/Defendants, the Impugned Judgment passed by the Trial Court is without jurisdiction and thus, a nullity in the eye of law, therefore, the same is liable to be set aside. While concluding his submissions, learned counsel for the Appellants/Defendants has argued that if at all a cause of action had survived in favour of the Respondent/Plaintiff and against the Appellants/Defendants, the same had to be pursued by filing an ordinary suit before the Civil Court. The reliance has been placed upon Bushra Bibi and others v. Additional District Judge and others (2022 MLD 1555); Muhammad Abaid Ullah v. Attique-ur-Rehman and 8 others (2015 CLC 641); Sheikh Muhammad Aslam v. Muhammad Ali Nawaz etc. (RFA No.1228 of 2015) decided on 04.04.2023.

9.Conversely, learned counsel for the Respondent/Plaintiff has commenced his submissions by arguing that in terms of the provisions contained in Rule 7 of Order XXXVII, CPC, once leave to defend is granted in a summary suit filed under Order XXXVII, Rule 2, the suit stands converted into an ordinary civil suit; adds that the summary character of the proceedings remain confined to the preliminary stage, thus, as contended by learned counsel for the Respondent/Plaintiff, there is no force in the submission that the Suit was to be tried before the Court of ordinary jurisdiction and not under summary jurisdiction conferred by virtue of Order XXXVII, Rule 1 & 2, CPC. In this respect, learned counsel has placed

reliance upon the judgments reported as Raziq International Pvt. Limited v. Multan Export Company etc (2025 LHC 5935); Hamid Ghani v. Muhammad Basit Siddiqui and another (PLD 2010 Lahore 487) and Irfan Afzal v. Zahid Iqbal (2004 CLC 384). While controverting the submissions advanced on the premise of Section 29 and 29A of the Act, 1881, learned counsel for the Respondent/Plaintiffs submits that the Appellants/Defendants have not been sued in their capacity as makers, drawers, indorsers or acceptors of negotiable instruments as it is an admitted position that the Appellants/Defendants have been sued in their representative capacity as legal heirs of the deceased Farman Ali; It was specifically averred that the liability of the legal heirs, if any, will remain confined to the estate of the deceased Farman Ali, if so inherited by his legal heirs. As to the merits of the case, learned counsel submits that the presumption attached to the negotiable instrument i.e. the Cheques in issue in terms of the provisions contained in Section 118 of the Act, 1881 has remained unrebutted, since, the Appellants/Defendants have failed to dislodged such presumption; lastly submits that the Plaintiff has produced all the necessary evidence and witnesses to bring home the assertions of the plaint and consequently the Impugned Judgment and Decree is liable to be upheld for having been passed in accordance with law while appreciating the evidence led before the Trial Court. Learned counsel has placed reliance on the judgments report as Sh. Abdul Majid v. Syed Akhtar Hussain Zaidi (PLD 1988 SC 124), Sh. Muhammad Arshad v. Sh. Muhammad Asghar (PLD 2007 Lahore 111), Doud Khan v. Muhammad Rashid (PLJ 2023 Lahore 199), National Bank of Pakistan v. Humayun Sultan Mufit (1984 CLC 1401), Sultan Ahmad v. Registrar Baluchistan High Court (2023 SCMR 1955), Olas Khan and others v. Chairman NAB (PLD 2018 SC 40), Qazi Shamsur Rehman and another v. Mst. Chaman Dasta and others (2004 SCMR 1798), Muhammad Hussain and another v. Muhammad Shafi and others (2004 SCMR 1947) and Bilal Haque and another v. Kamran Ali Afzal and others (2025 SCMR

10.Arguments heard, record perused.

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11.In a nub, apart from other determinations, the following pivotal question of law is required to be answered by this Court on the basis of rival contentions of the parties:

“Whether a summary suit under Order XXXVII CPC is maintainable against the legal heirs of a deceased signatory of negotiable Instrument(s) who are neither signatory(s), indorser(s), or maker(s) of the same.”

12.Since, the objection viz the very assumption of the jurisdiction by the Trial Court has been raised by the Appellants/Defendants, therefore, this question has to be dealt with ahead of all other questions as the jurisdiction cannot be exercised by any Court, Tribunal or Forum, unless specifically conferred upon it. Article 175(2) of the Constitution of Islamic Republic of Pakistan embodies this basic principle. The question of jurisdiction lies at the very foundation of all proceedings, which must be present or the proceeding is void. It is well settled by now that the defect of jurisdiction goes to the root of the matter and strikes at the very authority of Court or Tribunal to pass an order, therefore, the question of jurisdiction has to be decided ahead of all other questions.1 It is trite that the question of jurisdiction has to be decided at the outset as the question of jurisdiction of a Court or a judicial forum is of paramount importance and of the foremost pivotal consideration; it is this question which defines as to which Court is competent to handle the case, where it should be heard, and what type of cases it can address. The determination of question of jurisdiction is the cornerstone of fair legal process ensuring that cases proceed efficiently, prevent delays and maintain clarity.2 The doctrine of jurisdictional fact Executive District Officer, School and Literacy, District Dir Lower and others v. Qamar Dost Khan and others (2006 SCMR 1630), Mansab Ali v. Amir and 3 others (PLD 1971 SC 124), Mian Asghar Ali v. Government of Punjab through Secretary (Colonies) BOR, Lahore and others (2017 SCMR 118) S. M. Waseem Ashraf v. Federation of Pakistan through Secretary M/o Housing and Works, Islamabad and others (2013 SCMR 338 @ 345)

Muslim Commercial Bank Limited v. Muhammad Anwar Mandokhel and others (2024 SCMR 298) Izhar Alam Farooqi, Advocate v. Sheikh Abdul Sattar Lasi and others (2008 SCMR 240) Munawar Hussain and 2 others v. Sultan Ahmad (2005 SCMR 1388).

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connotes that certain state of facts must exist before a Court, Tribunal or Authority can exercise the jurisdiction vested in it; the Court, Tribunal or Authority may inquire into those facts to determine whether it has jurisdiction but cannot confer jurisdiction upon itself by making an erroneous decision regarding such facts.3 For raising objections to the jurisdiction of the Trial Court in the Suit, the Appellants/Defendants have placed reliance upon Sections 29 and 29-A of the Act, 1881 and for substantiating the submissions, reliance has been placed on the cases of Bushra Bibi, Muhammad Abaid Ullah and Sheikh Muhammad Aslam supra.

13.I have perused the relevant provisions as well as the judgments cited by the Appellants/Defendants and not inclined to subscribe to the interpretation sought to be made by the Appellants/Defendants for contending that the summary Suit under Order XXXVII CPC was not proceedable against them. It is fall to be noted that in the Suit in hand, the Appellants/Defendants have not been impleaded in their capacity as makers, drawers, indorsers or acceptors of the Cheques nor it is alleged by the Respondents/Plaintiffs that the same was signed by the Appellants/Defendants, instead, the Appellants/Defendants have been impleaded/sued in their representative capacity as legal heirs of the deceased Farman Ali and will indeed be liable to satisfy the Decree, only to the extent of estate or assets if so inherited by them from the deceased Farman Ali; the Suit did not seek to impose any personal liability upon the Appellants/Defendants as drawers, indorsers or acceptors of the Cheques. It is pertinent to note that the Respondent/Plaintiff has successfully proved by the dint of evidence produced during the course of trial that the Cheques were issued by the deceased Farman Ali; the same were issued against due consideration and were dishonored on being presented for encashment during his lifetime, thus, the cause of action had matured in the lifetime of Farman Ali Deceased, in favour of the Respondent/Plaintiff and against the deceased Farman Ali, which accrued cause of action continued to exist and survives against the legal heirs and representatives of the deceased despite Adil Khan Bazai v. Election Commission of Pakistan and another PLD 2025 SC 319

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his death; it was not a personal liability attached to the ‘person’, which may be declared to have extinguished at the event of his death; instead it was a liability of a civil claim, which survives the death of the person and exists/continues against the legal representatives of such a person to the extent of the assets and estate(s) inherited by such legal representatives.

14.The above leads me to consider the Judgments cited by the learned counsel for the Appellants/Defendants. Before proceeding to examine the said judgments, it needs to be appreciated that a case is only authority for what it actually decides and cannot be cited as precedent for a proposition that may be inferred from it.4 Likewise, as held by the Supreme Court of Pakistan, a judgment cannot be generalised beyond its context, as it is only applicable to the situation at hand and does not serve as a precedent for matters that lie outside its explicit scope. This principle underscores the limited applicability of judgments and reinforces the need for careful analysis when considering their implications in future cases.5 Keeping these settled principles in mind, I have considered the referred judgments and respectfully hold that none of the referred judgments is a precedent for the case in hand. Firstly, it needs to be appreciated that in all three judgments cited by the learned counsel for the Appellants, the plaints of the suits filed under Order XXXVII, Rule 2, CPC were ordered to be returned under Order VII, Rule 10, CPC for presentation of the same, if so desired, before the appropriate forums and in none of these cases, either the suit was tried after the grant of leave to defend nor the evidence was led or decrees were passed. In the case of Bushra Bibi 6 supra, a preliminary issue was framed as to the maintainability of the suit on the touchstone of Sections 29 and 29-A of the Mst. Sakina Bi and others v. Barkat Hussain and others (C.A. 3347 of 2022) ( 5-MB), decided on 20.02.2026; Syed Hammad Nabi and others vs Inspector General of Police Punjab, Lahore and others (2023 SCMR 584), Naubahar Bottling Company (Pvt.) Limited and others v. Federation of Pakistan through Revenue Division Ministry of Finance and others (2022 SCMR 765), Quinn v Leathem (1901 AC 495); Trustees of the Port of Karachi v. Muhammad Saleem (1994 SCMR 2213); Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary. Ministry of Law and Justice, Islamabad and others (PLD 2009 SC 879) per Ch. Ijaz Ahmed J,, Mst. Muhammadi and others v. Ghulam Nabi (2007 SCMR 761).

Muhammad Shakeel and others v. Additional District Judge, Faisalabad and others (PLD 2025 SC

572=2025 SCP 35).

Bushra Bibi and others v. Additional District Judge and others (2022 MLD 1555).

Act, 1881, which preliminary issue was decided against the defendants of the suit by the trial court; the said order was called into question by the defendants of the suit through a Constitutional Petition, which Constitutional Petition was allowed in the terms that the preliminary issue was decided in favour of the defendants/petitioners of the said suit and the plaint was ordered to be returned under Order VII, Rule 10, CPC for filing before the appropriate forum. Likewise, in the case of Muhammad Abaid Ullah,7 the maker of the cheque in issue died before the presentation of the cheque by the beneficiary of the same and the suit was filed against the legal heirs due to dishonoring of the cheque after the death of its maker; the suit was initially decreed ex-parte, which ex-parte judgment was set aside on an application filed under Order 12(2) of CPC. The matter came up before the learned Single Judge in Chambers of this Court through a Civil Revision Petition filed by the legal heirs of the deceased, whereby it was held that the plaint is liable to be returned under Order VII, Rule 10, CPC as it was held by the learned Single Judge in Chambers of this Court that the summary suit under Order XXXVII, Rule 2, of CPC cannot be filed against the legal heirs of the deceased in terms of Section 29-A of the Act, 1881. Somewhat similar were the facts in the case of Sheikh Muhammad Aslam supra and thus same findings were rendered. It is observed at the cost of repetition that in none of the cited precedents the respective suit(s) filed under Order XXXVII, Rule 2, CPC were proceeded beyond the summary stage of the suit(s) i.e. grant of leave to defend, therefore, considering the well settled position of law that after the grant of leave to defend, the suit filed under Order XXXVII, Rule 2, of the CPC proceeds as an ordinary civil suit as once leave is granted, the suit loses its summary character and proceeds in form of a regular trial, where the Court adjudicates the matter on the basis of preponderance of evidence. As held in the case of Riaz International, the summary suit under Order XXXVII, CPC ordinarily has two phases: the first, being the state of summary proceedings commencing from the institution of the suit and Muhammad Abaid Ullah v. Ateeq-Ur-Rehman and 8 others (2015 CLC 641)

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ending with the decision on leave to defend. If the plaint is returned on account of jurisdiction or leave is refused, the matter concludes at this stage. If leave is granted, the second phase follows, in which the suit is treated as a regular ordinary trial: issues are framed, parties adduce their evidence, the burden of proof is determined in the light of those issues, and the case is decided on merits, in accordance with the general procedure of the CPC and law of evidence.8 Thus, it is held that even if it may be assumed for the sake of appreciation of argument of the Appellants/Defendants that the Suit could not have been instituted as a suit under Order XXXVII, Rule 2, CPC, there is no denial of the fact that the Suit for recovery against the Appellants/Defendants could have been instituted and proceeded with as an ordinary recovery suit, therefore, it needs to be appreciated that after the grant of leave to defend in the Suit in hand, the proceedings which continued and culminated into the Impugned Judgment & Decree had, by operation of law, continued as proceedings of an ordinary civil trial since the issues were framed, evidence was lead, witnesses were examined and a judgment has been rendered on merits. Be that as it may, the objection viz the maintainability of the Suit in the facts and circumstances of the case in hand, is essentially an objection rooted in procedure as the very nature of Order XXXVII, CPC is procedural in pith and substance; the procedure neither creates nor extinguishes substantive rights and merely regulates the mode of adjudication. Considering the well settled principle of law that no one has a vested right in procedure9, the objection at this stage of the case viz the assumption of jurisdiction by the Trial Court is misplaced and untenable. The law can be categorized as either substantive or procedural; substantive law defines rights, while procedural law deals primarily with the process and the remedies involved; procedure is merely a machinery, a means to an end, Raziq International Pvt. Limited v. Multan Export Company etc (2025 LHC 5935) Hamid Ghani v. Muhammad Basit Siddiqui and another (PLD 2010 Lahore 487 Irfan Afzal v. Zahid Iqbal (2004 CLC 384) Pakistan Steel Mills Corporation v. Muhammad Azam Katper and others (2002 SCMR 1023), Commissioner of Income Tax, Karachi v. Eastern Federal union Insurance Co. (PLD 1982 SC 247), State through Advocate General, Sindh, Karachi v. Farman Hussain and others (PLD 1995 SC 1)

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and its object is to facilitate and not to obstruct the administration of justice. In fact, procedural laws are meant to set the rules for the judicial system, outlining how the business of the Court should function to protect the rights of individuals within the credible and sound judicial system; that purpose is to safeguard and uphold the due process of law and ensure a fair trial in both civil and criminal proceedings.10

15.There is another important aspect of the case in hand, which distinguishes it from the cited precedents. A perusal of the written statement filed by the Appellants/Defendants would reflect that no such objections viz the jurisdiction of the Trial Court was agitated at the time of filing of the written statement or leave to contest. The reliance may further be placed upon the provisions contained in Section 21 and Section 99, CPC which mandate that objections as to place of suing i.e. the objections viz the jurisdiction has to be raised at the earliest possible opportunity, which objection must demonstrate failure of the justice. Likewise, Section 99 of CPC provides that no decree shall be reversed for any error, defect or irregularity, not affecting the merits of the case or jurisdiction of the Court. In the instant case, neither any failure of justice has been demonstrated nor any prejudice has been established as the case was decided in accordance with the due process and settled principles of fair trial. Thus, the procedural irregularity, if any, is not fatal and rather inconsequential in the case in hand as it is well settled that every irregularity or illegality in the exercise of jurisdiction will not render the order void, therefore, every procedural irregularity cannot be allowed to stand in the way of justice unless it is established that the irregularity has caused a serious miscarriage of justice.11 The reliance may further be placed upon the landmark judgment of the Supreme Court in the case of Imtiaz Ahmad 12 whereby it was held that: “the proper place of procedure in any system of administration of justice is Muslim Commercial Bank Limited v. Punjab Labour Appellate Tribunal through Chairman, Lahore and others (2025 SCMR 303)

Qazi Shamsur Rehman and another v. Mst. Chaman Dasta and others (2004 SCMR 1798); Muhammad Swaleh and another v. Messrs United Grain & Fodder Agencies (PLD 1964 SC 1997) Imtiaz Ahmad v. Ghulam Ali and others (PLD 1963 SC 382).

to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless essential on the grounds of public policy.” “...any system which by giving effect to the form and not the substance defeats the substantive right is defective to that extent.”

16.In the instant case the Trial Court did not lack the inherent jurisdiction and only the procedure adopted at the time of filing of the Suit has been made basis for alleging the grounds of lack of jurisdiction. In the case in hand, the Appellants/Defendants never objected to the jurisdiction of the Trial Court and willingly participated in the proceedings by adducing pro and contra evidence and only after having failed in their cause, they have opted to raise objections viz the jurisdiction of the Trial Court. It is well settled by now that where a Court does not lack inherent jurisdiction but the procedure adopted is alleged to be defective or irregular, a party participating in proceedings without objection cannot later challenge jurisdiction when the result goes against it.13

17.Another significant question, which is inextricably linked to the questions of law sought to be agitated by the Appellants/Defendants is the relevance of Section 7, read with Section 12(2) of the Punjab Civil Courts Ordinance, 1962 (the “Ordinance, 1962”). Under the said provisions, the District Judge has the original jurisdiction over civil disputes without any limit, as regards the value involved thereof; the District Judge also has the powers to withdraw proceedings from a Civil Judge to either dispose of the same himself or entrust it to any other Judge subordinate to it, thus, the District Judge has original jurisdiction viz all civil disputes without any limit, therefore, the trial conducted by the learned Additional District Judge/Trial Court in this case has no substantive defect, nor it has any elements of miscarriage of justice as the same standard of proof have been applied while conducting the proceedings by the District Judge in the civil suit, which are applicable for the trial of a suit by a Civil Judge. It is imperative to observe that the provisions contained in Section 15, CPC, Muhammad Hussain and another v. Muhammad Shafi and others (2004 SCMR 1947

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which are to the effect that every suit is to be instituted in the Court of lowest grade, is a Rule of convenience and procedure and does not by any means effect the jurisdiction of Superior Courts as the said provision is merely a directory and not mandatory provision. In the words of Saeed uz Zaman Siddiqui J.:

“This Rule, however, is to be read subject to the exception that when a suit is instituted in a Court of higher grade, it is discretionary with that Court to return the plaint to the Plaintiff as the Rule requiring the institution of the suits in the Court of lowest grade, competent to try the suit is a Rule of convenience and procedure designed primarily to avoid overcrowding of superior Courts but their jurisdiction to try and dispose of the suit which should have been instituted in a Court of lower grade is not affected. However, the discretion vested in the Courts of higher grade to return plaint is to be exercised keeping in view the settled legal principles laid down by the superior Courts in this regard after considering the facts and circumstances of each case, where for instance the objection is raised before a Court of higher grade that the suit should have been filed before a Court of lower grade at the stage, when the Court has already gone into evidence and concluded then instead of returning the plaint. The proper course will be to decide the same”. 14

18.Last but not the least, the reliance may be place upon landmark judgment in the case of Sh. Abdul Majid, 15 handed down by an Hon’ble Five Member Bench of the Supreme Court of Pakistan whereby the scope and contours of jurisdiction conferred under Order XXXVII, CPC was expounded by the Hon’ble Bench, while answering the following question:

(2)Whether even if the suit was not triable under Order XXXVII, Rule 1, C.P.C. on the strength of the aforesaid clause (e) of rule 1, the proper course was not to have it tried as an ordinary suit instead of directing the return of the plaint for presentation elsewhere.

While taking into account the amendments, brought about in Order XXXVII, CPC, the Supreme Court answered the question in the following terms:

The decision of this Court in Siraj and Company clearly indicated that where the procedure under Order XXXVII was being claimed by a plaintiff and was not available the trial Court could proceed with the case as an National Bank of Pakistan v. Humayun Sultan Mufit (1984 CLC 1401) (DB) Sh. Abdul Majid v. Syed Akhtar Hussain Zaidi (PLD 1988 SC 124)

ordinary suit. The High Court has not indicated any jurisdictional or procedural bar to it while determining that the decision of this Court in Siraj Din's case was obiter. In Muhammad Abdullah Sufi v. Messrs Muhammad Bux and Son and others P L D 1957 (W.P.) Karachi 445 the view taken was that where a suit was not triable by resort to the procedure prescribed in Order XXXVII, its trial could proceed as an ordinary suit. The law laid down by this Court was clearly attracted.

19.Apart from the above question, I have considered the merits of the case and I am satisfied that the Trial Court has lawfully satisfied itself regarding the claim, applied its mind and keeping in view the provisions contained in Section 118 of the Negotiable Instruments Act, 1881, decreed the Suit while appreciating the evidence in its true spirit in accordance with law and rendered the issue wise findings, which findings are well reasoned and are in consonance with the settled principles of law. It is trite that the presumption which may normally flow from issuance of an instrument, would lean towards guarantying its repayment. The reliance is placed on the case of Sh. Muhammad Waseem,16 whereby it is held that if there is nothing on the record of the case which may work as rebuttal to the presumption attached to a negotiable instrument, presumption will lead to decreeing the Suit. Therefore, in absence of any tangible rebuttal, justifiable cause or plausible reasons, the Trial Court has lawfully and competently proceeded to issue the Decree. There is hardly any glaring defect or legal infirmity in the conclusion drawn by the learned judge while passing the Impugned Judgment. The initial proof of due execution of negotiable instrument was discharged by the plaintiff and upon such discharge, the onus shifted to the Appellants/Defendants by the force of presumption of section 118 of the Act. It was then for the defendant to prove that the Cheques were not supported by consideration, notwithstanding the fact that leave to appear and defend was been granted.17 As regards the standard of proof for rebuttal of presumption of section 118 of the Act is concerned, the Supreme Court of “Col (Retd.) Ashfaq Ahmed and others v. Sh. Muhammad Wasim” (1999 SCMR 2832); “Abbas Ali and another v. Asif Abbas and 3 others” (2016 CLD 555).

Muhammad Azizur Rehman v. Liaquat Ali (2007 SCMR 1820), Haji Karim and another v. Zikar Abdullah (1973 SCMR 100)

Pakistan has held that such a presumption in favour of a cheque had to be rebutted strongly by issuer of the cheque.18 It is also well settled that when the execution is not denied, the burden and standard of rebuttal is much more heavier.19 It is vouched by the respectable authority that in a case where it is established that the cheque in issue belonged to the bank account of the issuer and the cheque has been dishonored due to “insufficient funds”, no other ground is available to a defendant.20

20.In view of the above discussion, this Regular First Appeal has no merits the same is accordingly dismissed and the impugned judgment dated 04.11.2020 is maintained. Before parting, I must acknowledge the invaluable assistance rendered by the learned counsels from both sides particularly by Mr. Muhammad Zeeshan Zafar, Advocate High Court.

(Khalid Ishaq) Judge Announced in open Court on 08.04.2026.

APPROVED FOR REPORTING

(Khalid Ishaq) Judge Ihsan

Rab Nawaz Khan v. Javed Khan Swati (2021 SCMR 1890)

Muhammad Arshad and another v. Citibank N.A., Lahore (2006 SCMR 1347), Col. (Retd.) Ashfaq Ahmed and others v. Sh. Muhammad Wasim (1999 SCMR 2832).

Najaf Iqbal v. Shahzad Rafique (2020 SCMR 1621)