ASIM HAFEEZ, J.---This Regular First Appeal is against the judgment dated 15.12.2009, by the learned Additional District Judge, Sahiwal, whereby the suit of respondent [deceased and represe nted through legal heirs] under Order XXXVII Code of Civil Procedure, 1908, on the basis of a promissory note was decreed to the tune of Rs.
60,000/- .
2. Briefly , the facts of the case are that the respondent alleged business relatio ns with the appellant long ago.
Alleged that appellant asked for loan of Rs.60,000/- for business - purchase of land - and said amount was paid in presence of the witnesses and in this behalf a receipt and promissory note dated 22.02.2006 was executed, containing promise to return the amount within 6 months. Upon failure, respondent was constrained to file suit under Order XXXVII, ibid, wherein the appellant appeared, was allowed leave to appear and defend the suit.
Written statement was filed, wherein business relation, receipt of loan and execution of promissory note along with receipt were emphatically denied. Issues were framed, evidence adduced and the trial court proceeded to decree the suit vide judgment and decree dated 15.12.2009. Hence this appeal.
3. Learned counsel for the appellant submitted that in view of categorical denial of material facts, including the execution of promissory note, the presum ption attached under section 118 of the Negotiable Instruments Act, 1881 regarding the execution and consideration thereof stood rebutted. And the respo ndent failed to prove factum of payment of consideration by way of loan. Various portions of evidence/testimony of the respondent's witnesses was read and referred to highlight discrepancies therein. Learned counsel for the appellant has relied upon judgments reported as Asif All and 6 others v. Saeed Muhammad (2009 CLD 1301 ); Malik Muhammad Akram v. Khuda Bakhsh (2000 CLC 759 ) and Nasir Ahmad v . Pakland Cement Limited (2001 CLC 1 156).
4. On the contrary learned counsel for the respondent defended the judgment and referred the evidence led/produced to prove the payment of the amount, in the presence of witnesses, execution of the receipt and promissory note, attestation thereof. Per learned counsel, the presumption extended to the promissory note was not rebutted successfully , hence, decree was in accordance with the law .
5. Arguments heard. Available record perused.
6. The facts of the case are straightforward though few facts are crucial and need reiteration. In terms of the plaint, the respondent alleged sustained business relationship with the appellant and on the basis whereof the appellant asked for loan for business to purchase land. In written statement the appellant denied request for loan, receipt of payment and execution of the promissory note and receipt thereto. The appellan t alleged collusive arrangement between the respondent and attesting witnesses of the promissory note. The appellant alleged that respondent along with others habitually prepare and exhort money from naive villagers through such tactics.
7. The core questions are that what would be the status of statutory presum ption attached to a negotiable instrument - promissory note in this case - under section 118 of Negotiable Instruments Act, 1881 in view of categorical denial; and whether it is appropriate for the court to form and express its opinion reached upon comparison of thumb impression by itself, particularly in view of the facts and circumstances of this case.
8. The presumption under section 118, ibid, is rebuttable. And whether it was successfully rebutted in this case and onus shifted on the respondent to prove execution of promissory note and payment of consideration. Evidence adduced is perused. It is discernable that payment of consideration and execution of promissory note fundamental components of transaction - were statedly carried out at the office and in the presence of Mr. Dr. Abdul Salam, Advocate, whose evidence was crucial. He was not produced to testify , which withholding of evidence suggests adverse inference in terms of illustration (g) of Article 129, Qanun-e-Shahadat Order , 1984.
No evidence was produced by the respondent to prove 'long standing business relation and purpose of the loan, alleged to have been received for purchase of land, which constitute relevant fact, forming part of transaction as alleged in the plaint, burden to prove said relevant fact was on the respondent under Article 119 of Qanun-e- Shahadat Order , 1984. Whether in the absence of any evidence regarding purchase of land - which constitute a relevant fact - the presumption claimed regarding payment of consideration is attracted. In view of the evidence available on record, the question of presumption has to be settled and determined, by the court, on the basis of principle of preponderance of probabilities. After grant of leave to appear and defend, allowed in view of denial of execution and absence of receipt of consideration, the presumption claimed stood further compromised. The standard of presumption attached to a document at the time of grant of leave to defend - adjudged in summary proceedings under Order XXXVII, Rules 1 and 2 Code of Civil Procedure, 1908 - is not the same as applied to a document during the course of regular trial - in proceedings after leave to appear and defend was allowed. In order to arrive at just and fair decision, in view of the facts of this case and quality of evidence, it is appropriate to adjudge and decide the matter on the principle of preponderance of evidence adduced. A reference to the ratio laid down in case reported as Asif Ali and 6 others v. Saeed Muhammad (2009 CLD 1301 ) would be apt. It is expedient to reproduce relevant portion of the judgment, which reads as; "5. Heard. Section 118 of the Negotiable Instruments Act, 1881, does not envisage a conclusive presumption about the drawing, consideration etc. of the negotiable instrument, rather without any fear of contradiction, it can be held to be rebuttable in nature and this is so clear and obvious from the expression used in the section i.e. "until the contrary is proved". The question, which shall thus arise for the consideration is that where a claim is propounded on the basis of a negotiable instrument, is it necessary and imperative in all such cases that the defendant should prove in the negative, that has not drawn the instrument and that it is without consideration or it is for the plaintiff to discharge the initial burden of proving his case in this regard , especially when the plaintiff has undertaken to prove that the negotiable instrument (cheque) has been duly executed for the consideration by Shaukat Ali; not only that issue No.4 has been framed in this case, which has placed the onus in this beha lf upon the respondent/plaintiff, rather he himself led evidence to prove the payment of the money through two witnesses P.W.2 and P. W. 3, his own statement and the statement of P. W. 4, Bank Manager , therefore, as per the judgment reported as Salar Abdur Rauf v. Mst. Barkat Bibi 1973 SCMR 332, the respondent/plaintiff is precluded in law to urge in this case that it was for the respondent to prove to the contrary".
[Emphasis supplied]
9. In this case, the trial court proceeded to form an opinion through comparison of thumb impression of the appellant on disputed documents and further drew adverse presumption against the appellant for its failure to request to refer the matter to hand writin g expert for comparison of thumb impression. There is no cavil to the principle that in exercise of powers available under Article 84 of the Qanun-e-Shahadat Order , 1984, the Court can assume responsibility to compare signatures/thumb impression to assess the genu ineness of a disputed document.
The question is how often and in what circumstances this power of the Court, to undertake an exercise of comparison, may be exercised. In this case the court exercised such power and arrived at definite conclusion qua similarity of thumb impression of the appellant on disputed document. Certainly , the exercise to undertake comparison of thumb impression is more convoluted and complex when compared to comparison of signature/writing. Though permissible but such exercise of power and assumption of responsibility by the Presiding Officer is termed undesirable in judicial pronouncement reported as Rehmat Ali Ismailia v. Khalid Mehmood (2004 SCMR 361 ), wherein it was held as under; "The above provisions do empower the courts to make the comparison of the words or figures so written over a disputed document to that of admitted writing/signature and the courts could exercise its judgments on resemblance of admitted writing on record. It is true that it is undesirable that a Presiding Officer of the Court should take upon himself the task of comparing signatures in order to find out whether the signature/writing resembled to the disputed document with that of admitted signature/writing but said provision do empower the court to compare disputed signature/writing with the admitted or proved writing".
[Emphasis supplied] In Rehmat Ali Ismailia's case , supra, the agreement to sale was otherwise proved to the satisfaction of the Court, which is not the case in the matter at hand.
10. The moot question would be that whether such exercise of power formation of subjective opinion by the court can be the sole determining factor for deciding rights/obligations of the parties. The determining factor would be the facts and circumstances of each case. In view of the facts of this case - when the balance of probabilities is evenly poised - decision through comparison of thumb impression by the learned trial court itself on the disputed document - in the absence of an expert opinion/report - is not a lawful exercise of discretion and jurisdiction vested.
This question came up for adjudication before the august Supreme Court of Pakistan in a judgment reported as "Mst. Akhtar Begum v . Muslim Commercial Bank Ltd. (2009 SCMR 264 ) wherein it was held as under; "7. We have minutely examined the disputed documents. In view of the emphatic denial by the petitioner of having signed the aforesaid documents. In our view, it was imperative for the Banking Court to have referred the same to handwriting expert for obtaining his opini on whether the purported signatures on the disputed documents were in the handwriting of the petitioner or were forged or manipulated by somebody else. The above very important aspect of the case not only escaped the attention of the Banking Court but the High Court also did not take notice thereof without realizing that a person cannot be made liable or responsible to make payment which he or she would otherwise not legally be bound to pay but being pressurized or forced to pay on the ground of some forged or manipulated documents. Persistent, strong and vehemence denial of the petitioner of her signature on the mortgage deed, power of attorney , etc. led us to make a comparison of her denied signatures with her admitted signatures and the comparison was made with the naked eye but the results were not very encouraging and the peculiar facts and circumstances of the case warranted such comparison by a handwriting expert for conclusively hold that the disputed documents bear the signature of the petitioner . It is a right of a party to seek and demand every possible assistance from the Court s of law and to hold him/her responsible only when he or she is found to have acted contrary to law".
[Emphasis supplied]
11. The appellant has denied the execution of the promissory note and the consideration thereof. In Muhammad Aziaur Rehman v. Liaqat Ali (2007 SCMR 1820 ) it was laid down that where execution of negotiable instrument was admitted, the burden to prove non-payment of consideration was on the executant. However , in the instant case the execution as well as payment of the consideration was categorically denied, the appellant remained consistent in its denial during his testimony . The burden stood discharged by the appellant. Additionally , mere placing of exhibit on the instrument would not absolve formal proof qua its execution. To fortify this view, guidance is sought from the judgment reported as Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2 others (PLD 1973 SC 160). In this case, upon assessing probabilities, the execution and payment of consideration appears to be more improbable than probable. The learned trial court has erred in law and failed to appreciate the evidence adduced and available.
12. In view of the circumstances of this case and law laid down in Mst. Akhtar Begum's case, supra, it is imperative that issue of genuineness of thumb impression of the appellant on promissory note be ascertained / determined through seeking assistance of handwriting expert, whose opinion - though not having binding value in terms of Article 59 of Qanun-e-Shahadat Order , 1984 - would certainly aid and assist the court in determining the genuineness or otherwise of thumb impression on disputed documents and adjudication of the matter .
13. In the circumstances, this appeal is accepted. The judgment and decree dated 15.12.2009 is set aside. The matter is remanded to the learned trial court with a direction to refer the matter to a handwriting expert with admitted and specimen thumb impression for seeking opinion whether the promissory note bears thumb impression of the appellant. And upon receipt of report, the learned trial court shall assess/evaluate the same and decide the matter afresh, in the light of the opinion/report and evidence already recorded and available on record.
The Parties may, if advised, submit or produce additional evidence pursuant to the opinion/report. This exercise would be carried at the expense of the appellant, who shall otherwise facilitate and extend full cooperation in this behalf. In case the court concludes that appellant is not extending cooperation in this behalf, despite affording reasonable opportunities, the Court may draw adverse inference and proceed to decide the matter accordingly on the basis of available evidence on record. Any observation in this judgmen t shall not affect/influence the adjudication of the matter on merits.
14. The learned trial court is directed to treat this case as 'priority case' and decide it within four months of the date of receipt of this judgment. The parties are directed to appear and produce copy of the judgment before the concerned court on 1st March 2019. The Of fice shall deliver this Judgment to the concerned Court.
No order as to the costs.