2006 PLP 863 (CLD)

This appeal is directed against the judgment and decree, dated 7-10-2004.

2. Facts in brief giving rise to this appeal are that respondent filed a suit under Order XXXVII, rule 2, C.P.C. for recovery of Rs. four lacs on the basis of a pro note dated 7-12-1998 purportedly executed by the appellant in favour of the respondent. It was contended in the plaint that respondent had business dealings with the brother-in-law of the appellant and an amount of Rs. four Lacs was due from the said brother in law. And the appellant in consideration of the amount due from his brother-in-law, executed the pro note in question. The appellant entered appearance and denied the allegations. Execution of the pro note was also denied likewise business dealings of the respondent with the brother-in-law of the appellant. It appears that leave was granted whereafter written statement was filed and issues were framed. Both parties led their respective evidence and thus the trial Court vide judgment impugned decree the suit in favour of the respondent.

3. Counsel for the parties have been heard and the record perused. It is contended by the learned counsel for the appellant that pro note in-question was inadmissible in evidence, hence, no decree could be passed on the basis thereof. Adds that the appellant did not execute the pro note. Asserts that pro note was without any consideration as no money admittedly changed hands between the parties. Further contends that there is no evidence on the record to establish the liability of the brother-in-law of the appellant in lieu whereof the appellant allegedly executed the questioned pro note.

4. It appears that pro note was tendered in evidence by Muhammad Bashir, P.W. and no objection whatsoever was raised as to its admissibility at that point of time on behalf of the appellant. Obviously, any objection in that regard would be deemed to have been waived off and cannot be allowed to be raised before us at this stage. We have further noticed that execution of the pro note has been duly proved on the record by the witnesses and the report of the Handwriting Expert.

5. Adverting to the contentions raised as to the absence of consideration. No doubt, there is a presumption that, pro note was executed for consideration as is the import of law embodied in section 118 of the Negotiable Instruments Act. However such presumption is rebuttable. In the facts and circumstances of the case, admittedly no consideration was paid to the appellant, and it is alleged that there was some liability owned to the respondent by the brother-in-law of the appellant. There is no specific finding that such liability stands established on the record. Details and nature of such liability are conspicuous by their absence in evidence produced on behalf of respondent in rebuttal of a denial of consideration by the appellant on oath when he appeared as a witness. It has also been noticed that no specific issue in this regard has been framed which may have resulted in the prejudice to both parties who did not produce evidence to prove/disprove consideration for the pro note in question.

6. In the circumstances, judgment of the trial Court cannot sustain, and the matter needs to be decreed afresh, particularly with reference to the payment of consideration, if any, of the pro note in-question.

7. Consequently, we accept this appeal set aside the order impugned and remand the case to the trial Court with direction to decide the question of consideration, if any, of the pro note. Trial Court may frame an issue in this regard and afford an opportunity to both the parties to lead their evidence thereon. Appeal accepted in the term reflected ibid. H.B.T./M-173/L????????????????????????????????????????????????????????????????????????????????? Appeal accepted.