2015 C L C 641
MUHAMMAD ABAID ULLAH Versus ATEEQ-UR-REHMAN and 8 others
Civil Revision No.288 of 2010
Summary suit against the legal heir of executant of negotiable instrument---Maintainability---Plaintiff filed suit for recovery of money on the basis of cheque whose maker died before encashment of the same---Suit was dismissed by the Trial Court---Validity---Maker of cheque had died before the same could be presented for encashment---Said cheque had ceased to have any effect as a "bill of exchange" on the death of its maker---Summary suit could only be filed against the executants of bill of exchange, hundies or promissory notes and not otherwise---Party who was not a drawer or maker of a cheque/bill of exchange was not liable thereon (naeem)and he could not be sued under O.XXXVII, Rr.2 & 3, C.P.C.---Legal representatives of deceased must sign the instruments in order to make them liable thereunder---Defendants had not signed the disputed cheque, they were not liable to the plaintiff against the cheque issued by their predecessor---Present suit was not maintainable---Trial Court was directed to return the plaint---
ORDER
--- This civil revision is directed against order dated 22-2-2010 passed by learned Additional District Judge, Tehsil Jatoi District Muzaffargarh whereby judgment and decree dated 23-11-2006 passed against respondents Nos.1 to 8 was set aside.
2. Brief facts of the case are that the petitioner filed a suit under Order XXXVII, Rule 2, C.P.C. for recovery of Rs.400,000 on the basis of cheque No.19433759 issued by Abdul Maalik who died before the cheque(naeem) could be encashed. The cheque in question was submitted by the petitioner on 1-2-2006 and it was dishonoured.
3. In consequence of dishonour of the above mentioned cheque, the petitioner instituted a suit for recovery under Order XXXVII, C.P.C. before the Additional District Judge by arraying respondents Nos.1 to 8 as parties therein. The respondents, it is alleged, appeared before the learned Additional District Judge and filed their application to leave to defend the suit. However, the said respondents did not turn up on the subsequent dates of hearing with the result that they were proceeded against ex parte. After recording the ex parte evidence of the petitioner the learned Additional District Judge was pleased to pass the ex parte judgment and decree on 23-11-2006.
4. On 17-9-2006, an application under Order 12(2), C.P.C. was filed by respondent No.9 wherein it was alleged that respondents Nos.2 to 6 were minors and, therefore, learned Additional District Judge ought to have appointed their guardian ad litem in terms of Order XXXII, Rule 3 of C.P.C. After hearing the arguments, the learned trial Court vide order dated 22-2-2010 set aside judgment and decree dated 23-11-2006 as well as dismissed the application filed under Order 12(2), C.P.C on the ground that it was not filed by the proper guardian of the minors.
5. The respondents in this petition have already been proceeded against ex parte, vide order dated 7-4-2014 as they did not enter appearance despite service upon them through publication in daily "Nawa-e-Waqat".
6. Learned counsel for the petitioner argues that respondent No, 1, brother of the minors was a major and therefore it made no difference if the provisions of Order XXXII, Rule 3, C.P.C. were not complied with. In this regard he also places reliance on judgment report as Muhammad Ashraf and another v. Nadeem Shahid and another 1998 SCMR 804 and Tanveer Mehboob and another v. Haroon and others 2003 SCMR 480. It is further contended that the learned Appellate Court(naeem) could not have set aside judgment and decree dated 23-11-2006 when it had also dismissed the application filed under section 12(2) of C.P.C.
7. The crucial question to be decided is whether under Order XXXVII, Rule 2, C.P.C., a suit for recovery on the basis of cheque can be filed against the legal heirs of the person who had issued the said cheque. The provisions of Order XXXVII, Rule 2 make it clear that they are specific to the bills of exchange, hundies or promissory notes and that suits, thereunder can only be filed against the executants of the aforementioned instruments and not otherwise.
8. It would also be seen that maker of the cheque, Abdul Maalik (deceased) had died before the cheque could be presented for encashment, The said cheque, thus, ceased to have any effect as a bill of exchange on the death of its maker. Therefore, the suit under Order XXXVII, Rule 2, C.P.C. filed by the petitioner was misconceived and was not maintainable.
9. In this regard, the provisions of sections 29 and 29-A of the Negotiable Instruments Act, 1881 which have direct relevance to the issue, are reproduced as under:
"29 A. legal representative of a deceased person who signs his name to a promissory note of exchange or cheque is liable personally thereon unless he expressly limits his liability to the extent of the assets received by him as such."
"29 A. No person is liable as maker, drawer, indorser or acceptor of a promissory note, bill of exchange or cheque who has not signed it as such:
Provided that where a person signs any such instrument in a trade or assumed name he is liable thereon as if he had signed in his own name."
10. The aforementioned provisions make it clear that a party who is not a drawer or maker of a cheque/bill of exchange is not liable thereon and accordingly cannot be sued under Order XXXVII, Rule 2, C.P.C. Under section 29-A of the Negotiable Instruments Act, (naeem)1881, in order for a legal representative of a deceased person to become liable under the cheque issued by his predecessor, it is necessary that he signs the said cheque for assuming the liability thereunder. However, this is not the case here as respondents did no such thing. The respondents, therefore, were not liable to the petitioner under the said cheque issued by their predecessor.
11. In this view of the matter, there is no need to interfere in the findings rendered by learned Appellate Court as the suit under Order XXXVII, Rule 2, C.P.C. filed by the petitioner against the legal heirs of Abdul Maalik (deceased) was not maintainable. Accordingly, this revision petition is dismissed. Learned Additional District Judge is ordered to return the plaint in suit titled "Muhammad Abaid Ullah v. Muhammad Ateeq-ur-Rehman etc." to the petitioner under Order VII, Rule 10 of C.P.C. The petitioner is directed to appear before the learned Additional District Judge on 16-7-2014. Office is directed to transmit a copy of the judgment to the learned Additional District Judge, Tehsil Jatoi District Muzaffargarh.
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