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Civil Petition No. 114 of 1979, decided on 13th May 1979.

(On appeal from the judgment and order dated 10th January 1979 of the Lahore High Court at Lahore in R. S. A. No. 12/79).

----‑ S. 119‑Payment of consideration ‑ Presumption ‑ Burden of proof‑Defence witness in his cross‑examination admitting execution of promissory note by defendant in favour of plaintiff through deed‑writer‑‑Thumb‑impression on promissory note not seriously denied by defendant and otherwise sufficiently proved by evidence of plaintiff and his witnesses‑Handwriting Expert produced by plaintiff in support of his case not at all cross‑examined on point Execution of promissory note by defendant in favour of plaintiff not at all in doubt in circumstances‑Onus lying on defendant to prove promissory note having been executed by him without consideration not discharged‑Suit, held, rightly decreed by High Court in Second Appeal.‑[Presumption‑Burden of proof].

Hassan Ahmad Khan Kanwar, Advocate Supreme Court instructed' by Rana Maqbool Ahmad Qadri, Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing : 13th May, 1979.

‑This is a petition for special leave from the judgment and decree dated 10th of January 1979, passed by a learned Judge of the Lahore High Court at Lahore in dismissing a regular second appeal filed by the petitioner against the respondent herein. Briefly the relevant facts are these. On the 24th of July, 1977, the respondent brought a suit against the present petitioner in the civil Court at Sahiwal for recovery of Rs. 10,000 on the basis of a promissory note dated 30th of August 1972 allegedly executed by him for consideration. The defendant‑petitioner in his written statement denied the execution of the promissory note. According to him his thumb‑impression on a docu ment was obtained by misrepresentation and fraud practised upon him. At the time the plaintiff‑respondent had accused his three nephews of a theft and it was to that connection that he was appointed as an arbitrator and he also promised to stand surety for them with the undertaking that in case they were found guilty he would reimburse him for his loss to the extent of Rs. 10,000 and his thumb impression was obtained on a writing containing the under‑taking thus given by him to the plaintiff. It however, appears that the plaintiff had instead obtained his thumb‑impression on the alleged promis sory note by manipulation, fraud and misrepresentation. The defendant there fore, denied the execution of the promissory note and any cash consideration allegedly received by him as a loan.

At the hearing before the trial Court the plaintiff examined the deed writer and two attesting witnesses (Mohammad Shafi and Nazir Ahmad P. Ws. 2 and 3) to depose to the execution of the promissory note (Exh. P. 1) and receipt (Exh. P. 1/A) dated 30th of August 1972 by the defendant against the loan of Rs. 10,000 advanced to him. Faiz Ahmad plaintiff respondent also appeared as own witness in support of his case. He also produced P. W. 5 Sardar Ali, finger print expert to depose that the thumb impression by the defendant on the promissory note and the receipt tallied with his specimen thumb‑impression. The witness was not cross‑examined on the point in spite of the opportunity allowed to the defendant. The case of the plaintiff‑respondent as it emerged from this evidence is that he had advanced Rs. 10,000 in cash as loan to the defendant in the presence of the two marginal witnesses in the chamber of his learned counsel Mr. Ashraf Batalvi Advocate, District Court Sahiwal and from there they went to the deed writer in the Court premises, where the defendant executed the promis sory note and the receipt in the presence of the marginal witnesses.

The learned Civil Judge II Class, Sahiwal, was not favourably impressed with the evidence produced by the plaintiff. He observed that scribe of the promissory note and the receipt admitted that the consideration was not paid in his presence. P. W. 2 Mohammad Shafi was a chance witness, and did not state that the parties were known to him. According to the learned Civil Judge it was not safe to rely on his testimony unless corroborat ed by some independent witness. P. W. 3 Nazir Ahmad the other marginal witness stated that prior to this pro-note the parties used to lend money to each other without any receipt. But act ordering to the Civil Judge the witness failed to explain why the execution of the promissory note and the receipt in suit was considered necessary between the parties on this occasion. The plaintiff while appearing as his own witness (P. W. 4) stated that the amount advanced by him to the defendant was not drawn from any Bank and that he had taken it from Fazal Din and Mohammad Rafique who were not examined as witnesses, and therefore, in the opinion of the learned Civil Judge an adverse inference could be raised under section 114 of the Evidence Act that they would not have supported the plaintiff on the point. He further observed that in rebuttal the defendant denied the execu tion of the promissory note and the receipt of any consideration under it and all his witnesses go to show that nothing was paid to the defendant. In these circumstances, according to the trial Court, plaintiff's statement alone was not sufficient to prove that the defendant had taken a loan of Rs. 10,000 from the plaintiff. The Court, therefore, dismissed his suit.

On appeal of the plaintiff, the Additional District Judge Sahiwal reversed the judgment passed by the trial Court and decreed his suit against the defendant with cost throughout on the 6th of December 1978. In doing so he made his own independent appraisal of the evidence adduced by the parties and arrived at the conclusion that the scribe of the promissory note had deposed in unequivocal terms about its execution by the defendant in the presence of the two marginal witnesses, who were subjected to lengthy cross‑examination. Both of them had consistently deposed to the payment of Rs. 10,000 by the plaintiff to the defendant as loan. Mohammad Shafi P. W. was an independent and disinterested witness. Mohammad Boota defendant as his own witness (D. W. 4) admitted in his cross‑examination that Nazir Ahmad P. W. was the real brother of his son‑in‑law (Sadiq) and as such he was closely related to him. In these circumstances there was no justification for the lower Court to have disbelieved the two marginal witnesses of the pro-note as to its execution and the advance of Rs. 10,000 as loan by the plaintiff to the defendant. In his opinion, the defendant failed to substantiate his allegation that the thumb‑impression on the pro-note in dispute was obtained by the plaintiff from the defendant by misrepresenta tion and fraud. In this connection the learned Additional District Judge further pointed out that Rashid Ahmad (D. W. 3) in his cross‑examination admitted about the execution of the promissory note for Rs. 10,000 by the defendant in favour of the plaintiff through the deed writer and this by itself was sufficient to knock out the bottom of the case of the defendant. The learned Additional District Judge observed that there was the legal presump tion in favour of the plaintiff as to the payment of the consideration under the promissory note as envisaged by section 119, Negotiable Instruments Act. In conclusion the learned Additional District Judge was of the opinion that the trial Court had erred in finding against the plaintiff on the issues framed in the suit. He, therefore, reversed its findings on all the four issues in decreeing the suit of the plaintiff.

On the 10th January 1979, in dismissing in limine the regular second appeal of the petitioner‑defendant, a learned Judge of the Lahore High Court at Lahore observed that the lower appellate Court had appraised the evidence, both documentary as well as oral, in minute details whereas the trial Court had dealt with the matter in an wholly superficial manner, and therefore, no exception could be raised against the judgment of the lower appellate Court and the inference drawn by it from the evidence was reasonable and neither perverse nor arbitrary.

In these circumstances the petitioner‑defendant has filed this petition for special leave from the judgment thus delivered by the learned Judge in Chambers dismissing in limine his regular second appeal. We have heard the learned counsel for the petitioner at considerable length and also gone through the copies of the pleadings of the parties and their evidence recorded by the trial Court produced before us. In particular before . us the learned counsel was rightly able to point out that the learned trial Court in dismissing the suit of the plaintiff has found against him on issue No. 1 alone about the alleged execution of the promissory note and the payment of the consideration to the defendant and he did not deem it necessary to record any finding on the other two issues Nos. 2 and 3. In spite of this inadvertent observation made by the learned Additional District Judge in appeal we are satisfied that his judgment proceeds on an objective consideration of the evidence as a whole adduced by the parties and was not vitiated by any such observation not affecting the merits of the findings. At any rate, the impugned judgment delivered by the High Court in second appeal did not suffer from this error and no exception could be taken against it in this behalf.

However, in connection with the impugned judgment before us the counsel was able to show that the learned Judge in Chambers had erred in observing that an appraisal of the trial Court's judgment showed that he did not give any finding on the point whether the promissory note was executed by the defendant or not and had laid emphasis on non‑payment of the consideration. In this connection he further submitted that the High Court had also erred in observing that significantly enough the execution of the pro-note was not "categorically denied by the appellant (petitioner himself) and no evidence was led by the defendant in support of the allega tion to the effect that he had in fact executed an undertaking on behalf of his nephews and his thumb‑impression on the promissory note in dispute was pro cured by manipulation and fraudulent misrepresentation" by conversion of the alleged undertaking given by him as a surety on behalf of his nephews. There appears to be some force in this contention advanced before us on behalf of the petitioner. In this connection on a careful reading of judgment delivered by the learned Civil Judge, it appears to us that from the evidence he was not fully satisfied about the execution of the promissory note in suit by the peti tioner as well as the passing of the consideration of Rs. 10,000 by the plaintiff to the defendant under it. The trial Court has further categorically observed in its judgment that in rebuttal the defendant stated that neither he received any money nor executed any pronote and had only thumb‑marked the undertaking to pay Rs. 10,000 if his nephews were found to be guilty and that all his witnesses (D. W. 1 to D. W. 3) go to prove that nothing was paid to the defendant. In spite of this error in judgment of the learned Judge in Chambers he was fully satisfied that the lower Appellate Court had appraised the evidence both documentary as well as oral in minute details and that the trial Court had dealt with the matter in an wholly superficial manner. On going through the copies of the pleadings of the parties and the evidence of the parties produced on this record, we have no hesitation in sharing this view with the learned Judge of the High Court. In fact as significantly pointed by the lower appellate Court Rashid Ahmad (D. W. 3) in his cross‑examination had admitted the execution of the promissory note by the defendant in favour of the plaintiff through the deed‑writer. The thumb‑impression affixed on the promissory note in dispute was not seriously denied by the defendant and was otherwise sufficiently proved by the evidence of the plaintiff and his witnesses. Indeed the handwriting expert (P. W. 5) when produced by the plaintiff in support of his case was not at all cross‑examined on the point. There could be hardly any doubt as to the execution of the promissory note by the defendant in favour of the plaintiff. Therefore, under section 119 of the Negotiable Instruments Act, it had devolved on the defendant to prove that the promissory note thus executed by him was without consideration. Apart from the cogent and consistent evidence led by the plaintiff to prove the payment of Rs. 10,000 in cash by the plaintiff to the defendant as loan, the latter has miserably failed to discharge the onus of this issue resting on him.

As a result of the above discussion we find that the conclusion arrived at by the High Court in its impugned judgment is unexceptionable. There is hardly any force in this petition which is dismissed.

Petition dismissed.

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