1985 PLP 2741 (CLC)

Respondent brought a suit for recovery of Rs.10,000 under Order XXXVII, C.P.C. against the appellant on the basis of a cheque, dated 15-11-1972 drawn by the appellant for the aforesaid amount in favour of the respondent. The appellant applied for leave to defend the suit which was allowed by the learned District Judge, Tharparkar. However, none of the parties led any evidence at the trial.

2. In the written statement the plea of the appellant on facts was that the respondent had advanced the sum of Rs.9,000 to the appellant against a Qabala, dated 25-4-1972 for supply of 200 Maunds of Cotton pods and simultaneously obtained a promissory note and a cheque, dated 15-11-1972 as collateral security for the due performance of the terms of contract. The appellant alleged that he performed his part of the contract and supplied the goods in terms thereof. The appellant also raised legal pleas to the effect that the Deccan Agriculturists Relief Act governed the suit and that the suit was accordingly not maintainable as well as that it was barred by limitation.

3. The learned District Judge has held that the onus of proof whether the cheque was without consideration lay upon the appellant as its execution was not denied. In the absence of evidence from the appellant's side, therefore, the learned District Judge reached the finding that the cheque was with consideration. Similarly he found no substance in the legal pleas raised by the appellant. He accordingly passed a decree for Rs.10,000 against the appellant with interest at 6 percent per annual. The appellant now seeks to challenge the judgment and decree in this appeal.

4. Under section 30(1), clause (b), Negotiable Instruments Act it was the liability of the appellant even to compensate the respondent for the dishonour of the cheque by his bankers. Even otherwise there is a presumption of consideration of a negotiable instrument under section 118 of the Negotiable Instruments Act.

5. The only contention advanced on behalf of the appellant before me is that the cheque was a collateral security furnished by the appellant made in connection with the contract of supply of cotton pods. However, admittedly no evidence was produced by the appellant although the onus of proof in regard to all the issues lay upon him. In reply to a question from the Court the learned counsel submitted that an application was made on behalf of the appellant for summoning the respondent as a Court witness which was refused by trial Court. The practice of summoning the opposite party as a witness in a civil proceeding has been consistently deprecated by the superior Courts. It was for the appellant to have at least himself gone in the witness-box and testified to the pleas raised by him. But even he did not appear as his own witness. The learned District Judge was, therefore, fully justified in decreeing the suit on the admission of the appellant as to the execution of the cheque in question.

6. No other contention has been raised before me.

7. In the result there is no substance to the appeal which is accordingly dismissed in limine. M.Y.H. Appeal dismissed.