2023 PLP 905 (CLC)

SULTAN TANVIR AHMAD, J.

Present revision petition, filed under section 115 of the Code of the Civil Procedure, 1908 (the 'Code'), is directed against the judgment and decree dated 09.11.2021 passed by learned Additional District Judge, Minchinabad, whereby, the appeal against the judgment and decree dated 20.03.2021 passed by learned Civil Judge First Class, Minchinabad, has been dismissed.

2. The facts, necessary for the disposal of the present petition, are that on 03.01.2013 the respondent filed suit for recovery of Rs.600,000/- (the 'suit') on the basis of promissory note dated 14.06.2010 (the 'promissory note'). Per contents of the suit the petitioner obtained loan of Rs.500,000/- from the respondent with the promise to return the same by 21.01.2011 and in case of failure to return the same before the cutoff date, petitioner also undertook to pay an additional amount of Rs.100,000/-.

3. The suit was contested by the petitioner by filing written statement and out of divergent pleadings of the parties, the following issues were framed: -

1. Whether the plaintiff is entitled to receive an amount of Rs.600,000/- from the defendant on the basis of pro-note as prayed for? OPP

2. Whether the plaintiff has no cause of action or locus-standi? OPD

3. Whether the suit of the plaintiff is liable to be dismissed Under Order VII, Rule 11, C.P.C.? OPD

4. Whether the plaintiff has not issued any notice to the defendant in accordance with law? OPD

5. Whether neither the plaintiff has affixed tickets on receipt/pro-note in accordance with law nor the tickets are crossed? OPD

6. Whether the plaintiff has filed this false and frivolous suit just to vex and harass the defendant, therefore, the defendant is entitled to receive special cost in sum of Rs.20,000/- under section 35-A, C.P.C., form the plaintiff? OPD

7. Relief."

4. Both the parties led their respective evidence. Plaintiff produced Nazeer Ahmad stamp vendor as PW-1, Muhammad Jamil Naseer Buttar advocate as PW-2, Muhammad Deen as PW-3, Muhammad Amin as PW-4, Muhammad Ashraf, one of the marginal witness, as PW-5 and plaintiff himself appeared as PW-6. The question as to the genuineness of the thumb impressions on the promissory note was referred to Punjab Forensic Science Agency and Muhammad Akbar Ali fingerprint expert was examined as PW-7. From the respondent side, the promissory note was brought on record as Exh. P-1, receipt dated 14.06.2010 is on record as Exh. P-2 and the affidavit dated 14.06.2010 has been brought on record as Exh. P

3. The report given by fingerprint expert is available on record as Exh.P-4 and Exh.P-5.

5. On the other hand, petitioner appeared as DW-1 and apart from the sole oral statement of the petitioner nothing has been brought on record to prove the version taken in the written statement.

6. On 20.03.2021 the learned trial Court gave issue-wise finding and decreed the suit to the extent of Rs.500,000/- with costs of the suit whereas, the claim of Rs.100,000/- has been dismissed in the following manners: - "In the light of decision on issues supra particularly, under issue No. 01, suit of the plaintiff for recovery of Rs.5,00,000/- against the defendant is hereby decreed with costs of suit. Decree sheet be drawn. File be consigned to records after its due compilation and completion."

7. The above said judgment and decree was assailed by the petitioner through civil appeal No.51/2021 dated 23.10.2021. The learned Appellate Court dismissed the appeal vide judgment and decree dated 09.11.2021. Aggrieved from the same, the present revision has been filed.

8. Messrs Hafiz Muhammad Asghar Bhatti and Muhammad Ahmad Balouch, the learned counsel for the revision petitioner has submitted that the promissory note was attested by two marginal witnesses, fulfilling the requirement of Article 17 of Qanun-e-Shahadat Order 1984 (the "Q.S.O., 1984') but respondent merely produced one marginal witness namely Muhammad Ashraf (PW-5) however, he has failed to produce Allah Bakhsh son of Sher Muhammad Watoo which is in violation of Article 79 of the Q.S.O., 1984, therefore, promissory note could not be proved. He has further contended that the receipt dated 14.06.2010 / Exh.P-2 (the 'receipt') was necessary to be proved to show the consideration of promissory note as per law settled in case titled "Gulzar Mehmood Khan v. Abdul Waheed" (2016 CLC 848) and as one of the marginal witnesses was never produced, therefore, the learned two Courts below fell to an error while granting judgment and decree on the basis of promissory note despite failure to prove the consideration by the respondent. Learned counsel has added that affidavit dated 14.06.2010 / Ex.P-3 (the 'affidavit') does not fulfill the requirement of Article 17 of the Q.S.O., 1984 hence, it is wrongly relied upon; that denial of execution of the promissory note and thumb impressions by the petitioner, made it incumbent upon the respondent to prove execution; that the learned two Courts below wrongly relied upon the expert evidence which is the weakest kind of evidence and the same cannot be given any importance, in the specific circumstances of the case.

9. Conversely, Mirza Muhammad Nadeem Asif, learned counsel for the respondent has vehemently opposed the present revision petition and he has contended that the sole purpose of this petition is to delay the recovery; that the marginal witnesses are not required to be produced, in view of the exception given in Articles 17 and 79 of the Q.S.O., 1984; that the Negotiable Instruments Act, 1881 (the 'N.I.A., 1881') is a special law and the promissory note is not required to be witnessed or proved by producing the said witnesses; that failure to prove the receipt is not fatal for the case as consideration for negotiable instruments are presumed as per section 118 of N.I.A., 1881. It is further submitted by the learned counsel that petitioner has even failed to rebut the presumption contained in section 118(a) of the N.I.A., 1881, therefore, the learned Courts below have rightly decreed the suit.

10. I have heard the arguments of the learned counsel for the parties and perused the record with their able assistance.

11. It is appropriate to first address the question raised by the petitioner that failure to produce second witness of the promissory note is fatal for the case. Hafiz Muhammad Asghar Bhatti, the learned counsel has relied upon Article 17 and 79 of the Q.S.O., 1984 and he has argued that it was necessary for the respondent to produce two man or one man and two women to prove the promissory note. The articles relied by the learned counsel are as under: -

17. Competence and number of witnesses. (1) The competence of a person to testify, and the number of witnesses required in any case shall be determined in accordance with the injunctions of Islam as laid down in the Holy Quran and Sunnah. (2) Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law, (a) In matter pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly; and (b) in all other matters, the Court may accept, or act on, the testimony of one man or one woman or such other evidence as the circumstances of the case may warrant.

79. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied." (Emphasis supplied)

12. Article 79 of Q.S.O., 1984 provides that a document cannot be used as evidence until two witnesses at least are called to prove execution, however, this requirement applies only if that particular document is required by law to be attested. Article 17(2) specifies that such requirement of attestation does not apply when contrary is provided in any special law. Section 4 of the N.I.A., 1881 provides that promissory note, which is an unconditional undertaking, is only required to be signed by maker. It reads as follows: - "4. "Promissory note. A "promissory note" is an instrument in writing (not being a bank-note or a currency-note) containing an unconditional undertaking, signed by the maker, to pay 2[on demand or at a fixed or determinable future time] a certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument." (Emphasis added)

13. The N.I.A., 1881, which is a special law, does not require attestation by witnesses or provides for any bearing of attestation or non-attestation on the instrument. The combined reading of the above articles of Q.S.O., 1984 and N.I.A., 1881 makes it amply clear that neither any attestation is required on the promissory note nor there is any requirement of calling the witnesses to prove its execution. The argument of Mr. Muhammad Asghar Bhatti, learned counsel for the petitioner that the second marginal witness of the promissory note was necessary to be produced by the respondent, therefore, has no force. Reference in this regard can be made to cases titled "Sheikh Muhammad Shakeel v. Sheikh Hafiz Muhammad Aslam" (2014 SCMR 1562), "Khawar Pervaiz Butt v. Muhammad Tahir Qasim Awan" (PLD 2017 Lahore 45), "Aziz Ahmad v. Akbar Shamsher" (PLD 2016 Lahore 502) and "Ali Muhammad Shah v. Ijaz Hussain" (2007 CLD 1084 Lahore). In Sheikh Muhammad Shakeel case (Supra) the Honourable Supreme Court of Pakistan has already observed as follows: - "

9. We have heard the learned Counsel for the parties and have perused the record. The appellant filed a suit in terms of Order XXXVII, Rule 2, C.P.C. on the basis of a Promissory Note executed by the respondent on 25-5-2001. The learned High Court has held that the Promissory Note was not attested in terms of Article 17(2)(a) of the Order, therefore, it was not a valid instrument. This finding of the learned High Court is contrary to the language of section 4 of the Act, which defines a Negotiable Instrument. In terms of section 4 of the Negotiable Instruments Act, a Promissory Note is required to contain the following ingredients:-- (i) An unconditional undertaking to pay, (ii) the sum should be the sum of money and should be certain, (iii) the payment should be to or to the order of a person who is certain, or to the bearer, of the instrument, (iv) and the maker should sign it.

10. If an instrument fulfills the above four conditions it will be termed as Promissory Note within the meaning of section 4 of the Act. The requirement of attestation of a document as contained under Article 17(2)(a) of the Order is contrary to the definition given by section 4 of the Act. Therefore, we are of the considered view that the Promissory Note Exh.P.2 produced by the appellant in evidence contains all the ingredients of a valid Promissory Note as defined in section 4 of the Act." (Emphasis supplied)

14. The second argument of Mr. Muhammad Asghar Bhatti, learned counsel of the petitioner is regarding proof of consideration of the promissory note. In this regard Mr. Bhatti has relied upon non-attestation of the affidavit (Exh. P-3) by any witness and failure to produce Allah Bakhsh, the purported independent marginal witness of the receipt (Exh. P-2), before the learned trial Court for examination. He has submitted that the petitioner has failed to prove consideration of the promissory note. At this juncture, it will be beneficial to reproduce the relevant part of section 118 of N.I.A., 1881:- "

118. Presumptions as to negotiable instruments. Until the contrary is proved, the following presumptions shall be made: (a) of consideration: that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration. (b) xxxx (c) xxxx (d) xxxx (e) xxxx (f) xxxx (g) That holder is a holder in due course. that the holder of a negotiable instrument is a holder in due course: provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him." (Emphasis supplied)

15. The reproduced provision clearly raises the presumption that negotiable instruments, when made or drawn, are for consideration. Section 118 above, starts with "until contrary is proved", which indicates that once a negotiable instrument is successfully brought on record and its execution is proved, presumption as to valid consideration arises in favour of the instrument and it remains attached to the instrument until contrary is proved by the one who is disputing the consideration. In view of the above presumption and in the absence of rebuttal of the presumption, it is quite unnecessary to bring on record or to prove an independent document to establish consideration. There is no necessity in law that this instrument must be backed up by separate receipt. In "Manyam Janakalakshmi v. Manyam Madhava Rao and others" (AIR 1973 Andhra Pradesh 103), even having recital of consideration in promissory note is held to be unnecessary. The relevant part of the said judgment is as follow:- "

16. A 'promissory note' is, therefore an unconditional undertaking and a 'bill of exchange' is an unconditional order to pay a certain sum of money. The law required that both should be signed by the maker. But the law does not require that a negotiable instrument should recite the consideration for which it is made or drawn. The law does not also require the person suing on the instrument to allege the consideration for which it was made or drawn. Irrespective of any recital in the instrument or any allegation in the plaint regarding consideration. the law presumes that the instrument was made or drawn for consideration. The presumption is that there was consideration and not that there was any particular consideration, that which might be recited in the instrument or that which might be alleged in the plaint. The presumption arises as soon as the execution of the instrument is proved and the presumption continues until 'the contrary is proved', that is, until it is proved that there was no consideration. It must be proved that there was no consideration at all for the instrument. Mere proof that the particular consideration recited or alleged did not exist may not suffice, though such proof must naturally be a circumstance to be considered in deciding whether there was no consideration at all. Therefore, a plaintiff who, quite unnecessarily, adduces evidence to prove a certain consideration but is unable to prove that consideration, need not necessarily lose his action for that reason." (Emphasis added)

16. The Honourable Supreme Court of Pakistan in case titled "Haji Karim and another v. Zikar Abdullah" (1973 SCMR 100) has already observed that the initial presumption that a negotiable instrument is made, drawn, accepted or endorsed for consideration, although is rebuttable presumption, yet the onus is on the person denying consideration to prove the same.

17. Having said that burden to rebut presumption lies upon the party denying the consideration, the questions arise that how this presumption can be rebutted? The Honourable Supreme Court of Pakistan in case titled "Rab Nawaz Khan v. Javed Khan Swati" (2021 CLD 1261) answered the question as to how the presumption is rebutted, in the following words: - "Although the presumption stated above, that every negotiable instruments is made/drawn for consideration, is rebuttable, it is trite law that the burden to rebut this presumption lies upon the party arguing that the negotiable instrument has not been made/drawn for consideration. Reference is made to the case of Haji Karim v. Zikar Abdullah (1973 SCMR 100 at page 101). However, this raises the question: how can this presumption be rebutted? The answer has been provided by the Indian Supreme Court in the case of Bharat Barrel and Drum Manufacturing Company v. Amin Chand Payrelal ([1999] 1 SCR 704). "13. ...The defendant can prove the nonexistence of consideration by raising a probable defence... The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relics... The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption the defendant has to bring on record such facts and circumstances, upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would. under the circumstances of the case shall act upon the plea that it did not exist." (Emphasis supplied)

8. It may be noticed from the above cited passage that the bare denial of a party that a negotiable instrument has been made/drawn for consideration does not rebut the presumption in section 118(a) of the Act. Nevertheless, in the present case, this is precisely the respondent's defence; a bare denial." (Underlining is added)

18. In "Heerachand v. Jeevraja and another" (AIR 1959 Rajasthan 1 (V-46 C 1) it is decided that consideration is to be presumed until the Court believes that consideration does not exist or considers its non-existence is so probable that a prudent man ought, under the circumstances of the particular case, to act upon supposition that consideration does not exist. The following extract of above judgment is very relevant: - "(19) Applying this definition to the principle behind the presumption in S. 118(a) the principle comes to this. The Court shall presume a negotiable instrument to be for consideration unless and until after considering the matters before it, it either believes that consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. I would, therefore, say that the principle as explained by me above behind S. 118(a) was in force in the former State of Marwar even when the Act was not in force before 1949." (Emphasis supplied)

19. Reverting to the facts of the present case, initially the petitioner denied the liability by stating that promissory note and the receipt as well as the affidavit are prepared by the respondent in collusion with the marginal witnesses of the promissory note. In response to paragraph 2 of the plaint, where the promissory note is alleged, the following stance is adopted by the petitioner: -

20. However, when it was realized that one of the marginal witnesses is not produced, the petitioner has opted to take the position that claim should be unsuccessful for failure to produce second marginal witness. During the cross-examination of the petitioner, when he appeared as DW-1, himself agreed to have comparison of his thumb impressions with those on the promissory note. The learned trial Court obtained expert opinion from Punjab Forensic Science Agency. The conclusion of the expert went totally against the interest of petitioner. The expert was examined as PW-7 and the petitioner could not extract anything adverse therefrom despite lengthy cross-examination. The learned counsel also raised challenge to expert evidence and while relying upon case titled "Anwar Ahmad v. Mst. Nafis Bano through Legal Heirs" (2005 SCMR 152) he has contended that expert evidence is a weak kind of evidence hence, cannot to be relied upon, however, it is observed that the learned Courts below have used the expert evidence merely as supportive material to overwhelming evidence already produced by the respondent to prove his stance.

21. The learned counsel of the petitioner has also taken support of few minor discrepancies and contradictions in evidence of six witnesses produced by the respondent-side, which is not sufficient, in the present case, to rebut the presumption. The petitioner has completely failed to raise any probable defense or to show by producing any convincing evidence that the promissory note lacks consideration, hence he has remained unsuccessful to rebut the presumption arising under section 118(a) of N.I.A., 1881.

22. No case requiring interference, under section 115 of the Code, is made out. Consequently, this revision petition is dismissed. No order as to costs. SA/A-14/L Petition dismissed.