Abdul Hameed Dogar, J.--This direct appeal under Article 185(2) of the Constitution of Islamic Republic of Pakistan, 1973 is filed by appellant Mohammad Aziz-ur-Rehman against judgment dated 13.9.2006 passed by learned Division Bench of Lahore High Court, Lahore whereby RFA No, 124 of 2004 filed by respondent Liaqat Alt was allowed, the judgment of the trial Court was set aside and the suit of the respondent was decreed against appellant in the sum of Rs,6,00,000/-.
2. Briefly, stated facts giving rise to the filing of instant appeal are that respondent/plaintiff filed a suit for recovery of Rs,6,00,000/- against the appellant/defendant on the basis of pronote dated 03.7.1996 before Additional District Judge-I, Pakpattan. It was alleged in the suit that there were business relations between appellant and respondent. The appellant secured a sum of Rs,600,000/- from respondent as a loan against pronote and receipt both dated 3.7.1996 along with an agreement of even date. When appellant refused to return the said amount on demand, respondent was restrained to file the suit. The suit was contested by appellant and he was permitted to appear and defend the suit on 20.10.1997. In the written statement appellant denied the execution of promissory note but in the cross examination admitted the execution of pronote but without any consideration as it was an assurance and guarantee for the business between the respondent and M/s Asif & Co. and appellant had paid a sum of Rs,380,143/- through two cheques for rendition of account. Out of divergent pleadings of the parties the learned trial Court framed following issues:--
1. Whether the suit is hit by Order 2 Rule 2 CPC? OPD
2. Whether the present suit is based on malafide, if so, its effect? OPD
3. Whether the plaintiff is estopped to bring the present suit? OPD
4. Whether the suit is frivolous and vexation, if so, whether the defendant is entitled to special costs u/S. 35-A CPC for Rs,25,000/-? OPD
5. Whether the promissory note and receipt thereof dated 03.07.1997 is based on fraud, misrepresentation? OPD
6. If 'Issue No, 5 is not proved, then, whether the plaintiff has been paid the amount claimed by him through cheques mentioned in Para No, 2 of the written statement? OPD
7. If Issues No, 5 and 6 are not proved, then, whether the plaintiff is entitled to recover Rs, 6,00,000/-? OPP
8. Relief.
Respondent/plaintiff in order to prove his case examined himself as PW-1, Syed Nadir Shah, the scribe of the pronote and the receipt as PW-2 and the marginal witnesses of the receipt Abdul Qayyum and Muhammad Ali as PW-3 and PW-4 respectively. He also produced pronote dated 3.7.1996 as Ex.P-1 and the receipt of even date as Ex.P-2. On the other hand appellant/defendant examined himself as DW-1 and produced copies of the record/khata of M/s Asif & Company in the name of Azizur Rehman/respondent in his defence as Ex.DA/1-81 and Ex.DB/1-8. On conclusion of trial, learned trial Court dismissed the suit, of the respondent/plaintiff vide judgment dated 20.3.2001 on the ground that though Ex.P-1 and Ex.P-2 stand proved as the appellant admitted the same in cross examination but the respondent has failed to prove that alleged amount was given to the appellant as loan. The marginal witnesses of the pronote namely, Abdul Qayyum (PW-3) and Muhammad Ali (PW-4) were disbelieved. Similarly Syed Nadir Shah (PW-2), the scribe of the pronote stated that the amount was not paid before him. It was also held by the learned trial Court that respondent received an amount of Rs,380,143/- on 11.8.1997 through two different cheques and this was on account of-the business transaction between the parties and respondent had failed to explain as to why this amount of cheque was received after the preparation of the promissory note and the receipt. Feeling aggrieved respondent filed RFA No, 124 of 2004 before learned Lahore High Court, Lahore which was allowed vide impugned judgment as stated above.
3. We have heard M/s Salim Khan Chochi, learned counsel for the appellant and Irfan Ahmed Wyne, learned counsel for the respondent at length and have gone through the record and proceedings of the case in minute particulars.
4. Learned counsel for the appellant vehemently contended that the amount of promissory note was not received by appellant and in fact the pronote was obtained from the him in blank as a security at the time of the commencement of business between respondent and M/s Asif & Company. He further contended that appellant in order to resolve and settle the accounts paid Rs,380,143/- through two cheques but the respondent with malafide intention utilized the promissory note by filling up and attested by two marginal witnesses. According to him the scribe of the document had stated in clear terms that no money was paid in his presence. The marginal witnesses being closely known and related to respondent were rightly disbelieved by the learned trial Court: He contended that in a case where the defendant denies on oath of having received the consideration, the burden to proof would shift upon the plaintiff/respondent to substantiate his plea and plaintiff/respondent has failed to lead any independent and reliable evidence in proof of the payment of such consideration.
5. On the other hand, learned counsel for the respondent supported the impugned judgment and contended that appellant had admitted the execution of pronote and the receipt. The onus to prove that the same was without consideration lies upon the appellant in which he has miserably failed to do so. He further contended that the amount paid by appellant through two cheques was on account of business transaction between respondent and M/s Asif & Company and not in respect of promissory note and in such case the appellant would have sought the return of the promissory note. He further contended that in addition to promissory note and receipt the appellant had acknowledged the receipt of loan through a separate agreement Ex.DW1/2. He contended that according to Section 118 of the Negotiable Instrument Act,' 1881 (hereinafter referred to as 'the Act') until the contrary is proved, there is presumption that every negotiable instrument was made and drawn for consideration. He further contended that Abdul Qayyum (PW-3) and Muhammad Ali (PW-4) deposed on oath that the amount was paid in their presence and in the cross-examination their credibility and veracity have not been shattered at all.
6. The appellant denied the execution of promissory note or receipt in his written statement but in the cross-examination admitted that the pronote and the receipt were executed by him as a guarantee for business with respondent. According to Section 118 of the Act, until the contrary is proved, the presumption shall be made that every negotiable instrument was, made or drawn for consideration. The appellant has not been able to establish on record through independent and cogent evidence that consideration of the promissory note has not been received by him.
7. This Court in the case of Muhammad Boota Vs. Fiaz Ahmed (PLJ 1979 SC 196) while dealing with identical case observed as under:-- "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."
8. Similarly in the case of Haji Karim and another Vs. Zakir Abdullah (1973 SCM R 100) this Court held that: "Under Section 118 of the Negotiable Instruments Act, 1881, there is an initial presumption that a negotiable instrument is made, drawn, accepted or endorsed for consideration. Although this presumption is a rebuttable presumption, yet the onus is on the person denying consideration to allege and prove the same."
10. In view of above discussion, we are of the view that burden of proof of non-payment of consideration where execution of a negotiable instrument was admitted would be upon executant of document in which appellant/defendant has failed. Moreover, learned counsel for the appellant has failed to point out any illegality, misreading or non-reading in the impugned judgment warranting interference by this Court which is accordingly maintained. The appeal being devoid of any substance stands dismissed with no order as to costs.