Find a Lawyer

Second Appeal No. 99 of 1963, decided on 13th October 1967.

, S. 100‑Second Appeal- Finding of Fact‑Wrongly placing of burden on particular party -Error of law‑High Court can, interfere in second appeal.

Naeemuddin and Zahoorul Haq for Appellant.

Usman Ghani for Respondent.

Dates of hearing : 12th and 13th October 1967.

This is a plaintiff's 2nd Appeal whose suit for the recovery of Rs. 5,000 upon a promissory note dated 6th of March 1959, was decreed by Mr. Kazmi, Civil Judge 1st Class, ,Karachi, but on appeal by the defendant the suit was dismissed.

2. The plaintiff had brought this suit upon the promissory note, the execution of which was admitted by the defendant. The case set up by him was that he had received no consideration and that he had executed the promissory note under pressure because he had been called to the Police Station upon a complaint made by the plaintiff in respect of the alleged loan. The defendant was called upon to lead his evidence first because the burden was on him having regard to the presumption which arises under section 118 of the Negotiable Instrument Act. While giving evidence he produced a document also bearing the same date, namely, 6th of March. 1959, written in Urdu in the hand of the plaintiff in which the plaintiff had stated that because of the settlement arrived at between the parties, he will withdraw his complaint which he made in the Police Station with regard to his claim of Rs. 11,000, and that this settlement was final and the plaintiff had no more claim against the defendant. The story given by the defendant with regard to the duress was that the plaintiff had lodged a report with regard to his claim of Rs..11,000 against the defendant in which connection he was called to Aram Bagh Police Station and the S. H. O. suggested to him to com promise the matter, and it was later" on in the verandah where the plaintiff had threatened that he will get the defendant behind the bar if he did not make payment to him whereupon a pro missory note for Rs. 5,000 already typed was produced by the plaintiff and it was executed by the defendant. The S. H. O. was not there when this was done, though there were 2‑3 consta bles in the same verandah of the Police Station. Thereafter, according to the defendant the plaintiff took him to the office of his lawyer Mr. Arif, and that the same evening he delivered to him the Urdu document Exh. D. W. 1/1. The plaintiff denied the allegation of compulsion or duress as alleged by the defendant and went on to say that his claim was really for Rs. 11,000 and though he had made a report in the Police Station, he accepted a lesser amount because he was advised by his well‑wisher that he should do so as he did not have any written document to prove that he had advanced a sum of Rs. 11,000 to the defendant. He denied that the promissory note was executed at the Police Station, or that any threat was given to the defendant by him or anybody else. Upon this evidence, the learned Civil Judge repelled the contention as regards the promissory note having been executed under duress and accepted the plaintiff's claim on the basis of promissory note.

3. The learned District Judge in appeal approached the matter in this way. He first referred to the pleadings of the parties and the evidence of the plaintiff and the defendant which he mostly reproduced, and thereafter he proceeded to deal with the question whether the plaintiff had proved the advance of the alleged loan. This question has been dealt by him in para. 7 of the judgment. He started by observing that the plaintiff had admitted in the trial Court that at the time of the execution of tie pronote nothing had been advanced in cash. He then went on to add :‑---

" It would mean that no consideration passed when the defendant/appellant executed the pronote in question. Accord ing to the plain tiff/respondent the consideration of this pronote was prior small loans amounting to Rs. 11,000, but he has failed to prove these loans. He has not examined Muzaffar, who has introduced Vie defendant/appellant to him. Similarly, Walied Hassan, who is alleged to be present when the small loans were advanced, has not been examined, nor he has produced Bank account in his support. I have minutely examined the pronote dated 6‑3‑1959. Its paper and that of its copy as well as the letter Exh. D. W. 1/1 dated 6‑3‑59 are the sane. Naturally the presumption would be that all these three documents were executed at the same place and at the same time."

Having thus dealt with the question with regard to the requirement of proof by the plaintiff of the payment by him of consideration he went on then to consider the story that the note had been executed under duress. Wish respect to the learned District Judge this approach was wrong. There was a presumption in law with regard to the receipt of consideration by the defendant. The fact that no payment was made at the time when the pronote was executed did not in gay manner derogate from the weight of that presumption. We are, therefore, of the opinion that when the learned District Judge proceeded to examine the story of duress, he had already reached a conclusion with regard to the consideration and that conclusion was reached upon the ground that the plaintiff had, neither examined witness nor produced his bank account to prove the loan, and that this was necessary because at the time when the note was executed, no actual amount had been paid.

4. Now with regard to the question of duress, Mr. Usman Ghani forcefully argued that if it is established that the note was executed under duress, then the presumption as to the receipt of the consideration from the fact of the execution of the promissory note would not arise. It was further contended that such a finding having been given by the learned District Judge, it is not a fit case in which this finding of fact should be disturbed in second appeal. We are fully conscious of the weight of this argument. It is, however, important to note, firstly, that in this case the learned District Judge committed an error of law by placing on the plaintiff the burden of proving consideration in the first instance. We are of the opinion because of this and what we are now going to say that finding as to duress cannot be accepted as binding en this Court.

5. Now with regard to the allegation of duress, let us see what happened. The plaintiff himself admitted that he had made a report to the Arambagh Police Station that the defendant was owing him Rs. 11,000. The defendant who was no less a person than an Inspector in the Civil Supplies Department, went to the Police Station. There is not the slightest suggestion that any Police Officer gave him any threat. The fact that there was a suggestion of a compromise cannot be treated as a threat in this case because it is common ground that though the claim was fur Rs. 11,000, the acknowledgement by way of promissory note came only for Rs. 5,000. How can then it be said that the suggestion of com promise was to favour the plaintiff and not the defendant.

6. Now with regard to the execution of the promissory note, the learned District Judge has misapprehended the evidence when he has said that the plaintiff's version did not amount to a denial of the defendant's version that the pronote was already type written and was presented to him at the Arambagh Police Station where he was called by the S. H. O. This is not correct. It was the defendant's own version that after the execution of the promissory note he was taken by the plaintiff to the latter's advocate office. The plaintiff has nowhere admitted that a type written promissory note was presented to the defendant at the Police Station. Indeed upon the admission of the defendant that the document Exh. D. W. 1/1, in which the plaintiff had recorded a disclaimer of the remaining claim and full and final settlement, was given later on and in view of the finding of the learned District Judge that all these were written at one and the same time, the inescapable inference would be that the promissory note was neither executed nor handed over at the Police Station. Indeed in Exh. D. W. 1/l it is clearly stated that the plaintiff will withdraw the complaint which he had made at the Arambagh Police Station with regard to his claim of Rs. 11,000. 1f the transaction had taken place at the Police Station, there would be no question of the plaintiff's promising the defendant that he would withdraw his complaint. The further circumstance is that the defendant having taken a disclaimer with regard to the alleged balance of the claim of the plaintiff and having taken in writing acknowledgment of full settlement did not move his little finger in the matter so as to suggest that he had executed promissory note under pressure. His statement that the plaintiff had at the time of handing over Exh. D. W. 1/1 bad promised to tear out the promissory note was palpably false. So was his impression with regard to the notice of demand, which was sent to his address by Registered Post Acknowledgment Due. This acknowledgment receipt has 'been signed by one Iqbal. The defendant admitted that Iqbal Aziz was his nephew and yet he was shy of admitting that he received the notice of demand. The fact remains that he did not repudiate that demand even after be had received this registered notice. The suit was not filed until about six months after the execution of the promissory note and two months after the registered notice. We are, therefore, of the opinion that upon the evidence on record, no finding could have been given that the note had been executed under duress.

7. In view of the conclusion that we have reached, we hold that the defendant had failed to prove that the promissory note had been executed without consideration. Upon this finding the plaintiff's claim was rightly decreed by the First Court. We accordingly allow this appeal .so that the decree passed by the First Court shall be restored. We would like to add that as the defendant is now dead, this decree would be effective against the legal representatives of the defendant only to the extent of the assets in their hands belonging to the deceased‑defendant. Costs of this appeal as well as the appeal before the District Judge shall be borne as incurred.

C. M. S. Appeal allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.