1986 PLP 2298 (MLD)

2. "The learned District Judge on the pleadings framed the following two issues:‑

. "(1) Whether the defendant had not executed the cheque in favour of the plaintiff? . (2) Whether the cheque is without consideration?" Onus of proof of both the issues was placed on the defendant.

3. Defendant‑petitioner in the present revision petition has questioned the decision of the learned District Judge by which he has placed the onus of proof regarding issue No. 1 on him. It is, however, admitted before me that onus of issue No. 2 has been correctly placed on the defendant. However, the grievance of the petitioner in. this regard is that the words, "if issue No. 1 is proved in favour of the plaintiff" should be added before this issue. The learned counsel appearing for the respondent‑plaintiff had no dispute with this part of the argument of the learned counsel for the petitioner. However, the main controversy between the parties is about the placing of onus of proof regarding issue No.1.

4. Learned counsel, appearing for the petitioner referred to section 118 of the Negotiable Instruments Act. He read out the relevant portion of this section which is reproduced for facility of reference:‑

"

118. Until the contrary is proved, the following presumptions shall be made:‑ (a) that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated, or transferred, was accepted, endorsed, negotiated or transferred for consideration." He argued that the question of presumption against the executant of a negotiable instrument arises only when the execution of the instrument is not in dispute. In case where the very execution of the instrument is denied, the question of any initial presumption in favour of the plaintiff does not arise and it will be for him to prove the execution of the document. He relied on Mst. Mando v. Mst. Dulara 1933 Oudh 394 in support of the proposition advocated by him.

5. The learned counsel appearing for the respondent did not dispute the proposition that in case the execution of a document is denied, the onus to prove its execution should be placed on the plaintiff. He, however, argued that in the circumstances of this case, it cannot be said that the execution of the disputed cheque has been denied. He referred to portion of the written statement which I have quoted in the earlier part of this judgment.

6. I do not find force in the contention of the learned counsel for the respondent. The portion of the written statement referred to above does not show that the defendant has admitted the execution of the document. He has categorically denied its execution. It is stated in the alternative that in case the Court finds that the signatures on the disputed cheque are his, in that event also, he would not be responsible for the amount, as the plaintiff‑respondent, under the circumstances explained, might have retained a signed cheque with him. This assertion, in all probability, has been made with the realization that in the event of the proof of the execution of the document, the burden will be on him to show that the instrument was drawn and given to the plaintiff without consideration. Learned counsel for the respondent then contended that in suits based on negotiable instrument, defendant cannot be allowed to take alternative pleas and in all cases in which he takes an alternative stand, it should be presumed that he admits the execution of the document. He referred to Haji Karim and another v. Zikar Abdullah 1977 S C M R 100; Mst. Surayya Begum v. S. Ghulam Abbas and 5 others P L D 1974 Note 38 and Fine Textile Mills Ltd. Karachi v. Haji Umar P L D 1963 S C

163. I am afraid this contention of the learned counsel for the respondent too cannot be accepted. None of the cases cited has laid down the rule as was canvassed by the learned counsel. In all these cases, the execution of the instrument was either admitted or had been proved. These cases when read carefully, rather support the contention of the petitioner's counsel. In any case the learned counsel appearing for the petitioner meeting this part of the argument relied on Shaikh Ebadut Ali v. Muhammad Fareed and others 35 Indian Cases

56. In this case, it was observed by their Lordships of the Privy Council at page 60 as under:‑-- "Execution of a document consists in signing a document written out and read over and understood and does not consist of merely signing a name upon a blank sheet of paper. To be executed a document must be in existence, where there is no document in existence, there cannot be execution. Where an executant clearly says that he signed on a blank paper and that the document which he had authorised is not the document which he contemplated, the statement is a dental not an admission of execution."

7. For all that has been stated above, I feel that the learned District Judge was wrong in placing the onus of proof of issue No. 1 on the defendant. I recast the issues. Now the issues will be to the following effect:‑-- (1) Whether the defendant had executed the cheque in favour of the plaintiff? O.P.P. (2) If issue No. 1 is proved in favour of the plaintiff, whether the cheque is without consideration? O . P . D . (3) Relief.

8. The result is that the revision petition succeeds in the light of the above noted findings. The parties are left to bear their own costs. A.A Revision accepted.