' JAWWAD S. KHAWAJA, J.---This first appeal has been filedby the defendant to impugn the decree of the learned trial Court, dated 2-5-2006 passed in favor of the respondent-plaintiff for a sum of Rs,1,80,000 in a suit filed under Order XXXVII, C.P.C. The decree was passed on the basis of evidence after leave to defend had been granted to the appellant.
2. I have examined the record with the assistance of learned counsel for both sides and have also gone through the impugned judgment. The facts of this case are straightforward. The respondent- plaintiff based his claim on a promissory note (Exh.P.l.) and a receipt (Exh.P.2) both, dated 11-11- 2002. The appellant-defendant has acknowledged his signatures on the two documents. His defence, however, is that the said receipt and promissory note had been obtained by the respondent-plaintiff through fraud, forgery and deception. At this stage it may be noted that in his application seeking leave to defend the suit, the appellant categorically stated that he had never had any monetary transaction with the respondent-plaintiff. In his written statement, however, he attempted to improve on the averments made in his application for leave to defend. In paragraph- 3 of the written statement the appellant made an averment that he had taken a sum of Rs,98,000 from Muhammad Ayub (P.W.4) who is a marginal witness to the aforesaid documents and that the said Muhammad Ayub owned Rs,20,000 to the respondent-plaintiff. It was also pleaded that on the instructions of Muhammad Ayub he had paid the sum of Rs,20,000 to the respondent-plaintiff.
3. In view of the fact that execution of the receipt and promissory note was admitted by the appellant, a presumption arose under section 118(a) of the Negotiable Instruments Act that the promissory note was made for consideration. It was, therefore, for the appellant-defendant to prove his defence. Based on the available evidence (discussed below) I am in agreement with the learned trial Court that the appellant failed to discharge this onus.
4. The most important evidence in this case is a cheque (Exh.P.4), dated 25-1-2005. This cheque is drawn in favor of the respondent-plaintiff and has been drawn by the appellant on his account with the National Bank of Pakistan. Learned counsel for the appellant was unable to explain as to why the appellant issued this cheque in favor of the respondent-plaintiff. The cheque (Exh.P.4), therefore, presents strong documentary evidence to show that the defence raised by the appellant was not true. Here it may be reiterated that in his application for leave to defend he had denied any monetary dealings with the respondent-plaintiff and even in his written statement he only mentioned payment of Rs,20,000 to the respondent on instructions of Muhammad Ayub. He did not make any reference to the cheque (Exh.P.4).
5. Learned counsel for the appellant argued that the respondent had failed to prove the passing of consideration. This argument, however, is misconceived, firstly, because of the presumption under section 118 of the Negotiable Instruments Act, referred to above, it was for the appellant to establish through evidence the circumstances in which the promissory note (Exh.P.1). Had been made. The circumstances which were pleaded by the appellant in his application for leave to defend and in his written statement are not credible for the reasons discussed above and have been rightly disbelieved by the learned trial Court.
6. Learned counsel for the appellant next contended that the testimony of the two marginal witnesses, namely, Ghulam Baqir Khan (P.W.3) and Muhammad Ayub (P.W.4) was contradictory as to the place at which the respondent had given the sum of Rs,2, 00,000 to the appellant. I have considered this submissions. The discrepancy between the testimonies of the two witnesses, however, has to be juxtaposed against the overall evidence brought on record by the parties. The learned trial Court observed that the promissory note was made in 2002 while the testimony of the P.Ws was recorded in 2005 and, therefore, the discrepancy between the statements made by the two marginal witnesses could also be attributed to a lapse of memory. This observation is not unjustified. Had there been no strong documentary proof such as Exh.P.4. On file, the difference in the statements of P.W.3 and P.W.4 might have carried some weight. However. In view of the cheque (Exh.P.4) which contradicts the pleadings of the appellant, I am clear that the defence setup by the appellant was not to be believed.
7. Learned counsel for the appellant also argued that in terms of section 17(1) of the Qanun-e- Shahadat Order, the competence of the two marginal witnesses to testify had become questionable because of the above noted discrepancy in their evidence. In the circumstances of the present case, it cannot be said that the testimony of the aforesaid witnesses had been proved to be false. There is a clear distinction between false testimony, which amounts to perjury, and a statement made by a witness based on good faith on his memory. P.W.3 and P.W.4 have given evidence of the execution of the promissory note (Exh.P,l) and their veracity, on this score, has not been impeached. In the circumstances, I find no merit in the submission that P.W.3 and P.W.4 were not competent to testify in this case.
8. In view of the foregoing discussion, I find the impugned decree to be unexceptionable. This appeal is, therefore, dismissed.