2005 PLP 1840 (CLD)

IJAZ-UL-HASSAN KHAN, J.

This is an appeal from the judgment of the learned Additional District Judge, D. I. Khan dated 12-2-2004, passed in a civil suit for recovery of Rs. 15,000 instituted by the respondent under Order XXXVII of the Code of Civil Procedure on the basis of a pro note dated 10-8-2002, said to have been executed by the appellant in favour of the respondent.

2. Muhammad Obaidullah plaintiff-respondent, instituted suit against Adil Jamshed, defendant-appellant for recovery of Rs. 15,000 stated to have given by the plaintiff-respondent to the defendant-appellant as `Qarz-e-Hasna' on the basis of pro note dated 10-8-2002. According to the plaintiff-respondent when he demanded the return of the amount, the defendant-appellant refused to discharge the liability, which necessitated the filing of suit. The parties were put to trial on following issues:-- (1) Whether the plaintiff has got a cause of action? (2) Whether the suit of the plaintiff is maintainable in its present form? (3) Whether the parties have got friendly relations inter se? (4) Whether the defendant has got a loan of Rs. 15,000 from the plaintiff and in this respect pro note dated 10-8-2002 has been executed by the defendant in favour of the plaintiff? (5) Whether the plaint is fake /fictitious against law and facts? (6) Whether the defendant is liable to pay Rs. 15,000 to the plaintiff on the basis of pro note dated 10-8-2002? (7) Whether this Court has got jurisdiction? (8) Relief.

3. The parties produced evidence in support of their respective contentions. The learned trial Judge, accepted the claim of the plaintiff-respondent and allowed suit, vide judgment and decree dated 12-2-2004.

4. I have heard Mr. Zainul Abideen, Advocate, for the appellant and Mr. Sanaullah Shamim Gandapur, Advocate for the respondent, in the light of material on record.

5. Learned counsel for the appellant strenuously contended that the impugned judgment and decree is the outcome of misreading and non-reading of evidence; that the mandatory provisions of Order XX, rule 5, C.P.C., have been violated in this case; that the alleged pro note is forged, fictitious and without consideration and that conclusion drawn by the learned trial Court, being arbitrary and without foundation, cannot be allowed to remain intact. To supplement the arguments, he placed reliance on Salar Abdur Rauf v. Mst. Barkat Bibi 1973 SCMR 332; Muhammad Yaqoob and others v. Naseer Hussain and others PLD 1995 Lahore 395; United Bank Limited v. Ch. Ghulam Hussain 1998 CLC 816 and Jehangir Nasim Khan v. Habibur Rehman Tanoli, (Advocate) 2002 AC 833.

6. Learned counsel for the respondent, on the other hand, defended the impugned judgment and decree and maintained that sufficient material has been brought on record to substantiate the respondent's claim and the execution of the pro note stands proved satisfactorily.

7. Having considered the arguments of learned counsel for the parties and going through the material on record, I find that the execution of the pro note in question has been satisfactorily proved through independent and reliable witnesses. The witnesses were subjected to lengthy and searching cross-examination but their integrity could not be shattered. The mere assertion of the appellant that he had not executed the pro note and no consideration changed hands, without a positive attempt on his part to substantiate the same, is of no consequence. It may not be out of place to mention here that initially the execution of the pro note has been denied but at the trial a different stand has been taken, the execution has been admitted and a different story about a dispute over purchase of a photostat machine, has been narrated. The earlier denial and subsequent admission on the part of the appellant clearly exhibits his conduct and indicates that he has no regard for truth. It is an established principle of law that a person who asserts/alleges a particular fact and wants the Court to believe that such fact exists, he shall be required to prove the existence of such a fact.

8. A contract without consideration is void. A person suing on a contract must allege and prove consideration. Under section 118 of the Negotiable Instruments Act, 1881, the negotiable presumption in the case of all negotiable instruments is that they were made, drawn, accepted or endorsed for consideration. The production of the document itself, once the signature is proved or admitted, shift the burden on to the maker. It cannot be said that when there is a denial of execution of a pro note, the plaintiff is bound to prove not only execution but also the consideration. Once the document is proved, the presumption applies. This presumption is a statutory and mandatory presumption. This section raises a presumption in favour of there being consideration for every negotiable instrument. The presumption continues until it is rebutted and the only way it can be rebutted is by proving the contrary; viz., that the negotiable instrument was without B consideration. The presumption that is raised is not in respect of the consideration mentioned in the instrument, but is in favour of there being a consideration for the negotiable instrument, any consideration which is a valid consideration in law. Where the plaintiff admits to prove a particular consideration, the mere fact that he failed to prove such a consideration does not in any way relieve the defendant from his obligation in law to establish the contrary of the presumption. Where the defendant denied any dealing with the plaintiff, the onus lies on the plaintiff to prove both execution and passing of consideration. To discharge the burden of proof of absence of consideration it is not necessary for defendant to produce any definite evidence on his own behalf, he may rely on the facts and circumstances of the case and also refer to the flaws in the evidence of the plaintiff himself.

9. Court shall presume under section 118(c) that negotiable instrument was made for consideration. A person who wishes to dispel this presumption must furnish proof to C the contrary. The statutory presumption under section 118(c) in favour of existence of a consideration for every negotiable instrument would continue until the contrary is proved by person who alleges the want of consideration.

10. The objection of the learned appellant's counsel regarding non-compliance of the provisions of Order XX, rule 5, C.P.C. is misconceived. The learned trial Court has embarked upon the issues involved in the case, appreciated the evidence on record in its true perspective and has reached to the proper conclusions which are not open to exception. The findings rendered by the trial Judge are not only in consonance with the law on the subject but also in harmony with the evidence on record. It was on consideration of the evidence in its totality that a finding was recorded. There is no misreading or non-reading of any material piece of evidence which could render the findings of the Court below unworthy or illegal. The trial Judge has duly taken into consideration all the material facts of the case and after having done so, has recorded a detailed and well-reasoned judgment, which of course, is the result of proper application of mind. Although the learned counsel for the appellant has contended that the impugned judgment suffers from misreading and non-reading of evidence, yet when asked to explain as to which portion of the evidence has been misread or non-read by the trial Court, the learned counsel despite his best efforts could not point any such misreading or non-reading. In the result and for the foregoing reasons, finding no merits .in this appeal, the same is hereby dismissed, with no order as to costs. H.B.T./535/P Appeal dismissed.