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Official Citation: 2026 LHC 2448
Court / Jurisdiction: Lahore High Court (Honorable Mr. Justice Khalid Ishaq)
Ruling Summary: This decision was rendered by the Lahore High Court (Honorable Mr. Justice Khalid Ishaq), officially reported as 2026 LHC 2448. In this matter between the Petitioner and the Respondent, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Lahore High Court (Honorable Mr. Justice Khalid Ishaq) DECISION DATE: 08-04-2026 TAGLINE: (1) The Scope & interpretation of Sections 29 & 29A of the Negotiable Instruments Act, 1881. (2) The distinguishing factors of Judgments reported as 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). (3) The stage of raising objections viz the jurisdiction of a Court. (4) 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 ending with the decision on leave to defend. The second, when the suit is dealt with as a regular ordinary suit, if the leave is granted. (5) When a suit is instituted in a Court of higher grade, it is discretionary with that Court to return the plaint to the Plaintiff, however, 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 does not tantamount to affect the jurisdiction of the Court of higher grade. CASE DETAILS: Regular First Appeal (R.F.A) (Final Decree) 63446/20 ============================================================ 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 RFA No. 63446 of 2020
2 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 RFA No. 63446 of 2020
3 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 RFA No. 63446 of 2020
4 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 RFA No. 63446 of 2020
5 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 69). 10. Arguments heard, record perused. RFA No. 63446 of 2020
6 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
1 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) 2 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).
RFA No. 63446 of 2020
7 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
3 Adil Khan Bazai v. Election Commission of Pakistan and another PLD 2025 SC 319 RFA No. 63446 of 2020
8 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
4 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). 5 Muhammad Shakeel and others v. Additional District Judge, Faisalabad and others (PLD 2025 SC 572=2025 SCP 35). 6Bushra Bibi and others v. Additional District Judge and others (2022 MLD 1555). RFA No. 63446 of 2020
9 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
7 Muhammad Abaid Ullah v. Ateeq-Ur-Rehman and 8 others (2015 CLC 641) RFA No. 63446 of 2020
10 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,
8 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) 9Pakistan 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)
RFA No. 63446 of 2020
11 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…
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