' ATTAULLAH KHAN J.---Through this Regular First Appeal, the appellant Imam Bakhsh has impugned the judgment and decree dated 15-5-2007 passed by the learned Senior Civil Judge Tank, whereby suit of Khalifa Rasool Shah, plaintiff/respondent, for the recovery of rupees seventeen lac along with .Interest at the prevailing bank rate was decreed in his favour against the appellant on the basis of a pro note dated 11-5-2004.
2. Initially, appeal was filed in the Court of learned District Judge Tank but it was returned to the appellant because of lack of jurisdiction.
3. The suit was filed in the trial Court on 15-3-2005 for recovery of loan amounting to rupees seventeen lacs on the basis of pro note dated 11-5-2004 along with profit mentioned in the plaint.
4. The suit was contested by the defendant/appellant which gave rise to the framing of the following issues:--
(1) Whether the plaintiff has got a cause of action?
(2) Whether suit is within time?
(3) Whether the plaintiff is estopped to sue?
(4) Whether suit is based on mala fide?
(5) Whether plaintiff paid Rs.17,00,000 loan to the defendant vide pro note on 11-5-2004?
(6) Whether suit is maintainable in its present form?
(7) Whether plaintiff is entitled to the decree claimed?
(8) Relief.
5. After recording evidence, four witnesses were examined on behalf of the plaintiff while one witness who also happened to be the attorney of the defendant was examined on his behalf.
6. After hearing arguments, the suit was decreed as prayed vide judgment and decree mentioned above which are now under challenge in this appeal.
7. Learned counsel for the appellant besides relying on the written arguments submitted that in fact the alleged promissory note is not authentic in the eyes of law because it is not attested by two marginal witnesses, while the pro note is not required to be attested. He further argued that some words have been rubbed out by the scribe which creates doubt. His next submission is that the passing of sale consideration is not proved.
8. On the other hand, stand of the learned counsel for the plaintiff is that the presumption of truth is attached to the pro note which is a negotiable instrument 'under section 118 of the Negotiable Instruments Act 1881. According to him, the attorney of the defendant has admitted the signature of the defendant and also the receipt of loan and the execution of compromise between the parties .
9. Arguments and record on file along with written arguments submitted on behalf of the parties perused.
10. The record reveals that the witness of the defendant appeared in the trial Court on 23-1-2007 and admitted in cross-examination that: {{URDU TEXT}}
11. The above admission reveals that the transaction as alleged in the plaint has been admitted on behalf of the defendant. The compromise is also admitted. The copy of pro note is Ex.P.W.1/1 which is also admitted by the attorney of the appellant. The record reveals that the payment of loan has not been denied by the defendant. The pro note stands proved on the basis of evidence of the plaintiff. Moreover, the defendant through his attorney has admitted the receipt of loan. There is also no objection on the part of the defendant for issuance of decree in favour of the plaintiff/ respondent in accordance with the contents of the compromise.
12. Nothing has been proved at this stage that consent for issuance of decree on the basis of compromise was not given. No affidavit has been submitted to negate the no objection of the defendant over decreeing the suit.
13. As far as the objection of the learned counsel for the appellant regarding the attestation of the pro note through marginal witnesses is concerned, it is of no avail because there is no provision in the Negotiable Instruments Act 1881 which bars the attestation of pro note by the marginal witnesses. Rather it strengthens, the contents of pro note.
14. Keeping in view the above discussion, I am of the firm view that the plaintiff has proved his case through cogent evidence and no illegality has been proved by the appellant in the impugned judgment which is to be maintained. The defendant/ appellant seems to have resiled from the compromise and consent subsequently. It is an afterthought exercise but have failed to prove to the contrary, because the burden has shifted to the appellant after claiming compromise, his consent and also the very pro note. This burden was not discharged by the appellant/defendant.
15. Consequently, I find no substance in this appeal which is accordingly dismissed leaving the parties to bear their own costs.