( 1 ) ON August 30, 1961, the plaintiff instituted a suit in the City Civil Court, Calcutta under Order XXXVII of the Code of Civil Procedure claiming a decree on a dishonoured cheque dated 29th July, 1961 drawn by the defendant and payable to the plaintiff or order. The cheque is crossed generally and is marked with the words "a/c payee only'. Those words are written within the transverse lines of the crossing. The writ of summons in the prescribed form was served on the defendant on September 19. On September 25 the defendant field a petition praying for extension of the time to make an application for leave to appear and to defend the suit. The petition was rejected by the Registrar on September 28. On October 6, the defendant filed another petition asking for leave to appear and to defend the suit. By an order dated October 7, 1961 the Judge dismissed this petition. The defendant has moved this Court in revision against this order and has obtained a rule. The revision case has been referred to this Bench under Chapter II R. 1 proviso (ii) of the Appellate Side Rules.

( 2 ) MR. Sen for the defendant contended that the cheque dated the 29th July, 1961 is not a negotiable instrument within the meaning of Section 13 of the Negotiable Instruments Act, 1881 and that a suit on it under Order XXXVII, C. P. C. was not maintainable at all and in any event was not triable by the Judges of the City Civil Court.

( 3 ) NOW Order XXXVII, C. P. C. bears the heading "summary Procedure on Negotiable Instruments:. Rule 2 of Order XXXVII, C. P. C. however enables the plaintiff to institute a suit under the summary procedure upon "bills of exchange hundies or promissory notes". The rule makes no distinction between negotiable and non-negotiable bills of exchange. The heading, cannot control the clear and express enacting words of the rule and limit its operation to negotiable instruments as defined in Section 13 of the Negotiable Instruments Act, 1881, see in this connection Hammersmith and City Railway Co. v. Brand, (1869) 4 HL 171. Fletcher v. Birkenhead Corporation, (1907) 1 KB 205 at p. 213, R. v. Surrey (North Eastern Area) Assessment Committee, (1947) 2 All ER 276 at p. 279.

( 4 ) THE notification No. 9327 Judge dated December 14, 1958 published in the Calcutta Gazette on December 11, 1958 stated that "in exercise of the Power conferred by Cl. (b) of R. 1, XXXVII of the Code of Civil Procedure, 1908 (Act V of 1908), the Governor is pleased to specially empower the Chief Judge and the Judges of the City Civil Court, Calcutta to try summarily suits on Negotiable Instruments". By R. 1 (b) of O. XXXVII, the whole of the order is extended to Courts specially empowered in that behalf by the State Government. The clear intention of the notification is to extend the whole of the order of the Civil Court and to empower its Judges to try summarily all suits triable under the order. The expression "negotiable instruments" in the notification is borrowed from the heading of Order XXXVII, C. P. C. In both places the expression indicates bills of exchange, hundies and promissory notes referred to in the body of Order XXXVII, C. P. C. Even Act XXVI of 1881 though called the Negotiable Instruments Act, 1881 deals with instruments both negotiable and non-negotiable; by way of example see Sections 4 and 5 of the Act.

( 5 ) A cheque marked "a/c payee only" is a bill of exchange and consequently the plaintiff is entitled to institute a suit on it under O. XXXVII, C. P. C. and the Judges of the City Civil Court are empowered to try the suit. In this view of the matter the question whether such a cheque is a negotiable instrument within the meaning of Section 13 of the Negotiable Instruments Act, 1881 does not arise for decision in this case and consequently we ought not to express any opinion on the question. I notice that, according to English decisions, the marking "a/c payee" on a crossed cheque payable to order or bearer is no part of t