' ABDUL LATIF KHAN, J.---The appellant has called in question of the judgment and decree dated 19- 3-2012 of learned Additional District Judge-VI, D.I.Khan, whereby the suit of the respondent was decreed.
2. Short facts leading to the instant appeal are that the respondent-plaintiff filed a suit for recovery of Rs,15,80,000 on the basis of pro note dated 24-5-2009 against the appellant-defendant. The appellant-defendant appeared before the learned trial court and submitted an application for grant of leave to defend, which was accepted by the learned trial court and the appellant- defendant was allowed to file her written statement. After filing written statement, the learned trial court framed issues from the divergent pleas taken by the parties, recorded pro and contra evidence of the parties and after hearing arguments of the learned counsel for the parties, decreed the suit of the respondent-plaintiff vide judgment and decree dated 19-3-2012, the instant appeal.
3. The learned counsel appeared on behalf of the appellant contended that impugned judgment and decree passed by the trial court is against the material available on the record. He argued that the husband of the respondent-plaintiff is serving Inspector of Police and has made fake and forged promissory note dated 24-5-2009 on the basis of which the suit filed with mala fide intention. It was contended that no amount was taken by the appellant-defendant from the plaintiff-respondent as loan and story advanced by her is unbelievable. He contended that the signature of the appellant-defendant was obtained on a blank paper. He argued that the receipt has not been exhibited and the writing on the pro note is not visible. He argued that though there is no need of any witness on pro note, however, the receipt contains the signature of marginal witnesses, and only one out of them has been produced and as such the requirement of law of producing of both witnesses has not been complied with by the respondent-plaintiff. He contended that the appellant is a pardha observing lady and the story of loan of such huge amount, does not stand to reason.
4. As against that the learned counsel for the respondent-plaintiff contended that appellant- respondent has taken the plea in application for leave to defend to the effect that she was deceived by the plaintiff and her signature on the pro note was taken through fraud. It was contended in the application for leave to defend the suit that the pro note was obtained through fraud and obtaining of signature on the blank paper is not mentioned, however, in the written statement she has deviated from her earlier stance and contended that her signature was obtained on a blank paper which is quite contrary stance taken by her. Moreover, when appeared as DW-1 she has taken altogether different stance by deposing that the plaintiff brought a blank paper and ask her to sign it in a pleasant mood, she signed the same and her husband also signed it. He contended that the other marginal witness namely Muhammad Mehboob, happens to be the husband of the appellant-defendant whose national identity card number is find mentioned along with his name and signature. He supported the judgment passed by the trial court with vehemence.
5. I have heard the arguments of the learned counsel for the parties and record perused with their valuable assistance.
6. The perusal of record shows that the plaintiff brought a suit for recovery of Rs,15,80,000 on the basis of pro note dated 25-4-2009 on the ground that the appellant-defendant had cordial relation with the respondent-plaintiff and in the May, 2009, the said amount was obtained by her from the respondent-plaintiff, as loan. Pro note and receipt was got scribed in this regard. Leave to defend was obtained by the appellant, wherein it was alleged that she was deceived by plaintiff in getting signature over pro note. In written statement the plea taken by the appellant-defendant that she put her signature on a blank paper and that was taken by plaintiff through use of force.
She appeared as DW-1 and has relied upon her solitary statement in support of her contention, wherein she candidly deposed in examination in chief that she has signed the pro note in a pleasant mood along with her husband, who also put his signature, as a marginal witness.
7. The plaintiff has produced P.W.1, who has scribed the pro note Exh.P.W.1/1 and receipt Exh.P.W.1/2.
He deposed that though the woman i,e, appellant-defendant was not known to him personally but her husband was present at the time of scribing of pro note. Statement of Pir Muhammad Abbas was recorded as P.W.2, who was present at the time of scribing of pro note and receipt. Javed Ahmad Chughtai marginal witness of the pro note was examined as P.W.3 and statement of plaintiff was recorded as P.W.4 but other marginal witness namely Muhammad Mehboob husband of Mst. Saima Bibi, appellant did not accompany the plaintiff to depose in her favour, however, from the evidence available on the file the execution of pro note was proved by the plaintiff by producing scribe, marginal witness and other witness present at the time of scribing of pro note apart from the plaintiff herself.
8. As the signatures on the pro note was admitted by the appellant, albeit with different versions, firstly, in application for leave to defend as being deceived, secondly under coercion on blank paper as mentioned in the written statement and thirdly in a pleasant mood along with her husband, as such the burden shifted upon her to establish that she has not signed/thumb marked on the blank paper.
9. The appellant has not produced her husband for the reason best known to her. At least she has to produce her husband to support her contention fraud, coercion or of her consent in pleasant mood at the time of signature on the pro note. It appears that she has purposely restrained her husband from deposing as witness of the plaintiff in order to damage the case of the plaintiff due to non-production of other marginal witness, amounting to malice on her part and cannot be given legal touch to deprive the plaintiff from getting her legal right. The witnesses produced by the plaintiff has not been shattered in cross examination nor imputed to them, that they were making a false statement.
10. The Negotiable Instruments Act specify certain special rules of evidence comprising of certain presumption in favour of plaintiff as laid down in section 118 of the Act, which is reproduced for ready reference:-- "118. Presumptions as to negotiable instruments. Until contrary is proved, the following presumptions shall be made: of consideration; that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred, for consideration;
(b) as to date; that every negotiable instrument bearing a date was made or drawn on such date;
(c) as to time of acceptance; that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;
(d) as to time of transfer; that every transfer of a negotiable instrument was made before its maturity;
(e) as to order of indorsement; that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;
(f) as to stamp; that a lost promissory note, bill of exchange or cheque was duly stamped;
(g) that holder is a holder in due course; that the older of a negotiable instrument is a holder in due course; provided that, where instrument has been obtained from its lawful owner, or from any person in lawfull custody thereof by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him."
11. The bare reading of the above referred section of law speaks about the presumptions as to negotiable instrument until contrary proved. The onus would be on the person denying consideration to allege and prove the same. The presumption in favour of negotiable instrument raised that it is with consideration and in fact negotiated. Whenever instrument is issued it is issued for consideration and the burden lies upon the defendant to rebut the same because he has to prove the contrary that no consideration was paid. In the instant case the defendant has relied upon her solitary statement and has not seriously rebutted the contrary as provided under the law.
She has admitted her signature on the pro note along with signature of her husband and as such admitted that the instrument was made, drawn or indorsed for consideration, though the presumption is rebuttable if contrary provided but no evidence to this effect has been produced by the defendant which was under legal obligation to deny the consideration and prove the same.
12. For reasons stated above, I do not find any infirmity or material irregularity in the impugned judgment and decree passed by the learned trial court/Additional District Judge-VI, D.I. Khan which is maintained ana therefore, the instant appeal being bereft of substance is hereby dismissed.