2005 PLP 982 (CLD)

CH. IJAZ AHMAD, J.‑‑‑The brief facts, out of which the present appeal arises are, that the respondent filed a suit for the recovery amounting to Rs.10,00,000 on the basis of the pro note, executed by the appellant on 9‑5‑1999, along with the receipt dated 9‑5‑1999, in the Court of learned A.D.J., Faisalabad under Order XOCKVII, rules 1 and 2, C.P.C. The appellant filed an application, for leave to defend, controverted the allegations levelled in the plaint; the leave was granted, thereafter the appellant filed written statement. The learned trial Court, on the basis of the divergent pleadings of the parties, framed the following issues:‑‑ (1) Whether the defendant has not executed promissory note and receipt dated 9‑5‑1999, whereas his signatures were obtained on promissory note and receipt forcibly under undue influence when he was detained by F.I.A., Police, Faisalabad? OPD (2) Whether the plaintiff is entitled to recover @ 18% against the amount of Rs.10,00,000 mentioned in the promissory note? OPD (3) Whether the plaintiff has not come in the Court with clean hands? OPD (4) Whether the promissory note and receipt the value of Rs.10,00,000 were validly executed by the defendant in favour of the plaintiff, on 9‑5‑1999, and the plaintiff is entitled to recover the same? OPP (5) Relief. The learned trial Court, decreed the suit, vide judgment and decree dated 14‑5‑2004. Hence this appeal.

2. Learned counsel for the appellant submits that the learned trial Court, erred in law to decree the suit without giving the finding on each issue; he further submits that the learned trial Court, decreed the suit, on the basis of the order dated 24‑2‑2003, passed by the learned Special Judge, Central Faisalabad; he further submits that the suit of the respondent was time‑barred; the appellant has filed an application, for framing the issue qua that the suit filed by the respondent was time‑barred. The application of the appellant was not decided by the learned trial Court; he further submits that the appellant has taken a stance in the application for leave to defend and in the written statement that the pro note was executed under undue influence and coercion in favour of the respondent through the help of the police. The fact was not considered by the learned trial Court, in the impugned judgment.

3. The learned counsel for the respondent submits that the appellant has not filed any application for framing of additional issue on the basis of the preliminary objection, as is evident from the order‑sheet that no order has been passed qua the filing of the application by the appellant. He further submits that the appellant has not taken stand in the application for leave to defend qua that the suit filed by the respondent against the appellant was time‑barred, therefore, subsequent objection taken by the appellant in the written statement is an afterthought. He further submits that the learned trial Court, has decided the case, after proper appreciation of the evidence on the record, therefore, it is not in the interest of the parties to remand the case on this technical ground; he states that the judgment impugned is in accordance with the law laid down by the superior Courts. He further states that it is not necessary that the consideration paid to the appellant at the time of the execution of the pro note in view of section 4 read with section 118 of the Negotiable Instruments Act. In support of his contentions, he has relied upon the following judgments: ‑‑ Muhammad Rafiq v. Muhammad Nawaz (2001 CLC 318); Muhammad Sharif v. Muhammad Hashim Paracha and another (PLD 1987 Kar. 76); Muhammad Boota v. Faiz Ahmad (1979 SCMR 465) and Shabbir Anwar v. Sh. Tariq Mehmood and 2 others (2002 CLC 1102).

4. We have given our anxious consideration to the contentions of the learned counsel for the parties and perused the record ourselves. It is settled principle of law that the parties are bound by their pleadings as per law laid down bye the Honourable Supreme Court of Pakistan in the case reported as Mst. Murad Begum and others v. Muhammad Rafiq and others (PLD 1974 SC 322); the appellant has not taken the stance in the a qua that the suit of the respondent was time‑barred, therefore, the objection taken by the appellant in the written statement is an afterthought and the learned trial Court was justified not to frame any issue with regard to the preliminary objection qua that the suit filed by the respondent is time‑barred. Even otherwise, we have examined the record and find that the suit filed by the respondent is not time‑barred, as the pro note was allegedly executed on 9‑5‑1999, and the suit was filed on 8‑5‑2002 and according to the Article 73 of the Limitation Act, the suit is not time‑barred. It is also settled proposition of, law to that the appellant has taken stand in the application for leave to defend as well in the written statement, that the pro note was executed by the appellant in favour of the respondent under coercion, therefore, it is moral obligation of the appellant to prove this fact that the pro note was executed under coercion in View of the provisions of the Contract Act. The appellant did not produce a single witness to prove this fact, therefore, the basic issue was rightly decided against the appellant by the learned trial Court. The learned trial Court, was justified to take the judicial notice of the order of the Special Judge dated 24‑2‑2003 which was placed on the record in accordance with law.

5. It is admitted fact in the present case that the appellant/defendant accepted the execution of the pro note/receipt with the objection that the pro note/receipt was executed under coercion. Meaning thereby, the execution of the document was admitted by the appellant/defendant; therefore, burden to prove that the document in question was executed through, coercion was on the appellant/defendant but the appellant/defendant could not prove incident of coercion; therefore, trial Court was justified to decree the suit against the appellant/defendant. In arriving to this conclusion, we are fortified by the law laid down in Farid Akhtar Hadi's case (1993 CLC 2015).

6. It is also settled principle of law that under section 118 of the Negotiable Instruments Act, 1881, there is an initial presumption that negotiable instrument is made, drawn, accepted and endorsed for consideration although this presumption is rebuttable, yet it is settled proposition of law that the onus is on the person denying consideration to allege and prove the same as per law laid down by the Honourable Supreme Court in Haji Karam's case (1973 SCMR 100). It is also settled principle of law that it is duty and obligation of the appellant/defendant to prove that promissory note/receipt was without consideration but in the present case, the appellant/ defendant failed to discharge that burden, which is condition precedent in view of section 118 of the Negotiable instruments Act as per law laid down by the superior Courts in the following judgments: Khalid Mukhtar's case (1996 CLC 741), Muhammad Boota's case (1979 SCMR 465). It is also settled principle of law that appellant/defendant's claim that no payment was made before the witnesses, was of no consequence inasmuch as the pro note can be executed to secure the payment of monetary obligations as per law laid down in Muhammad Rafique's case (2001 CLC 318). Reference can also be made to Muhammad Yousafs case (PLD 1993 Lahore 244). In view of what has been discussed above, we do not find any error or illegality in the impugned judgment and decree of the learned trial Court, therefore, this appeal has no merit and the same is hereby dismissed. M.B.A./M‑1046/L Appeal dismissed.