ASIM HAFEEZ, J. This Regular First Appeal ("Appeal") arises out of judgment and decree dated 13.12.2010 of learned Additional District Judge, handed down in exercise of powers extended under Order XXXVII Rules 2 and 3 of Civil Procedure Code, 1908 ("Code"), in terms whereof respondent' s suit, seeking enforcement of promissory note, was decreed as prayed for .
2. The facts, essential for the adjudication of appeal at hand, are that respondent raised a claim on the basis of promissory note dated 15.03.2001 along accompanying receipt, allegedly executed and delivered by the appellant in lieu of alleged liability . It was the case of the respondent was that cotton yarn was supplied to a Firm namely , M/s S.S. Ginners on credit, which outstanding liability was assigned to the appellant in terms of the arrangement reached between the partners, whereby amounts payable to the respondent were required to be paid by the appellant and the liability of the Bank was assigned to another partner - who appe ared as PW-4, as witness of the respondent. In plaint, respondent alleged, that part payment of liability was made by the appellant through transfer of 5-Marla plot, allegedly valuing Rs.500,000, and balance payable amount of Rs.1,367,000/- was acknowledged and secured through the execution of promissory note and receipt. And upon appellant' s failure to discharge the obligation under the negotiable instrument, respondent was constrained to file the suit under reference. Appellant appeared and submitted contesting application for leave to appear and defend the suit, wherein execution of the promissory note, receipt and underlying liability were categorically denied. Upon finding triable issues, learned trial court granted leave to appear and defend and proceeded to frame various issues, out of which issue No.1 and 2 are relevant and same, for ease of reference, are reproduced as under;
1. Whether plaintif f is entitled to recover Rs.13,67,000/- on the basis of pronote dated 05.03.2001? OPP
2. Whether alleged pronote was procured by way of fraud, misrepresentation and without consideration? OPD
3. Both the parties respectively led their evidence. Respondent produced six witnesses and also relied upon documentary evidence, exhibited as Ex P-1 to ExP-4. On the other hand, appellant appeared as its own witness and Director Forensic Science Laboratory Punjab appeared as DW-2, and relian ce was placed on documentary evidence. Upon the conclusion of trial learned trial court decreed the suit of the respondent (impleaded and represented through legal heirs). Hence, this appeal.
4. Learned counsel for the appellants attacked the judgment on two counts. Firstly , that the report of the handwriting expert was misconstrued, misread, and material aspects thereof were conspicuously overlooked.
Secondly , respondent failed to prove the execution of the instrument - when factum thereof was categorically denied. Adds that existence of the promissory note became dubious per se when the respondent has not disclosed factum thereof while submitting written statement, subsequent to the alleged execution of the instrument, in a suit for seeking monetary damages by the appellant. Learned counsel referred to decisions in the cases of "Ghulam Murtaza Vs. Muhammad Rafi" (2020 CLD 265) and "Muhammad Khalil Khan Vs. Salah-ud-Din" (2011 CLD 504).
5. Conversely , learned counsel for the respondent responded that report of the handwriting expert, though ambiguous, simplicitor cannot be made basis to dispute the legality of the promissory note, when execution thereof was fully proved by producing the marginal witnesses of the receipt and the scribe of the pronote and accompanying receipt. Adds that one of the partners of dissolved Firm was produced as (PW-4), who affirmed obligation of the appellant to pay the liability qua cotton yarn supplied. To dispel the effect of expert' s report and to support judgment and decree, reliance is placed on the decisions in the cases of "Syed Muhammad Umer Shah Vs. Bashir Ahmed" (2004 SCMR 1859 ). "Qazi Abdul Ali and others Vs. Khawaja Aftab Ahmad" (2015 SCMR 284), "Syed Muhammad Umer Shah Vs. Bashir Ahmed" (2004 SCMR 1859 ), "Mst. Saadat Sultan and others Vs. Muhammad Zahur Khan and others" (2006 SCMR 193), "Mrs. Perin J. Dinshaw Vs. Mubarak Ali and another" (2016 YLR 251), "Haji Abdul Majeed & Co. through Managing Partner Vs. Additional District Judge Burewala District V ehari and 10 others" ( 2019 CLC 1693 ), "Umer W adda Vs. Munir Ahmad" ( 2015 CLC 457 ).
6. Arguments heard. Record perused.
7. The fundamental dispute is regarding the proof of the execution of the promissory note and consideration thereof - underlying transaction. The statutory presumptions, otherwise extended to the negotiable instruments, regarding consideration under section 118 of the Negotiable Instruments Act (1881), are of not much avail or significance hereof, in the wake of categorical denial of signatures, execution of the promissory note and accompanying receipt and consideration, by the appellant. And it is for the respondent to prove the factum of execution and legality of the consideration - underlying transaction. The presumption, otherwise claimed, stood considerably damaged / exposed in wake of positive evidence led by the appellant, particularly establishing factum of an obvious withholding of disclosure of alleged prom issory note, while submitting written statement by the respondent to the suit for seeking damages by the appellant - when such written statement was filed subsequent to the date of alleged execution, i.e. 15.03.2001 and receipt of same date. It does not appeal to the reason of a prudent man that why existence of alleged promissory note and accompanying receipt were not mentioned in the written statement - when especially the allegations in the suit for damages filed by the appellant touched the issue of libelous publication in Daily "Naya Daur Multan" disputing the truth of default in payment of loan. It is pertinent to mention that suit, for claiming damages, was filed in the month of July 2001 and responden t submitted written statement in February-2002 - which was conspicuously silent about existence of promissory note. Respondent was confronted with the written statement during cross- examination - who stated that such disclosure was unnecessary . The necessity of mentioning the details of promissory note in the written statement, in a suit for damages, may be inconsequential as far as those proceedings were concerned but such a non-disc losure is meaningful and holds substance while examining the question of adequacy of proof of the promissory note under reference. The probability of its existence would certainly diminish, making it highly improbable for a prudent man to believe in its existence, in view of aforesaid facts. There is another important aspect of this case. Respondent produced Muhammad Ikram-ul-Haq, President Anjuman-e-Arhtiyan Ghalla Mandi Khanewal (PW-5), who purportedly issued a certificate confirming default of the appellant qua the amounts claimed and payable to the respondent. Certificate (Exh-P3) dated 03.05.2001, wherein factum of the existence and execution of the promissory note was conspicuous by its absence. A question was also put to PW-5 during cross-examination, who affirmed that no information was disclosed with respect to promissory note in question. If the respondent held promissory note and receipt at the time of filing of written statement and seeking certificate of confirmat ion of liability , why no disclosure was made. This leads to drawing of adve rse inference by the court. Examined in this backdrop, respondent was required to prove the execution of the promissory note and underlying consideration thereof, which he failed.
8. Learned counsel for the respondent pleaded that marginal witnesses of receipt were produced, who also testified qua the signatures of the appellant and execution of the promissory note, with accompanying receipt. It is argued that scribe of the promissory note and receipt was produced, who affirmed execution of the instrument by the appellant. A partner of M/s. S. S. Ginner s was produced to prove the obligation of the appellant, and underlying consideration of the promissory note - qua sale and supply of cotton yarn. Merely upon producing the scribe and marginal witnesses, who clearly expressed lack of knowledge qua the alleged liability , onus is not discharged.
Notwithstanding apparent compromised independence of the witnesses produce d - marginal witnesses of the receipt and scribe thereof - an obvious and unconvincing conduct of the respondent - failure to disclose the existence and execution of promissory note - avalanched the effect and credib ility of the evidence otherwise produced by the respondent. It appeared from the perusal of the receipt that cash amount was paid to the appellant - as an alleged consideration of the prom issory note - however the contentions in the plaint are contrary to the contents of the receipt - wherein in fact respondent had claimed some previously payable liability . The marginal witnesses of receipt failed to testify convincingly to prove underlying transaction and alleged outstanding liability with respect to alleged supply of cotton yarn, hence presumption under section 118 of Negotiable Act, 1881 cannot be invoked. Reference is made to the ratio in the decision of case of "Asif Ali and 6 others Vs. Saeed Muhammad" (2009 CLD 1301 ). Consideration remained disproved and following instances would fortify this relevant fact. Respondent had claimed in the plaint that obligation of the appellant accrued in the wake of agreement dated 26.08.1997 amongst the partners - liability actually was against the Firm - and in this behalf account settlement was affected on 28.08.1997. No such agreement qua final settlement of account was produced on record, which tantamount to withholding of best evidence in terms of Article 129 (g) of Qanoon-e-Shahadat Order 1984. PW-4, one of the partners of the Firm also failed to produce any such agreement or account reconciliation statement dated 28.08.199 7. PW-5 alleged, during cross examination, that he saw the accounts of the Firm before issuing a certificate; but no such accounts were produced. It is claimed by the respondent that part payment of liability was settled by way of transfer of plot - to the extent of Rs.500,000/- which transaction happened in the year 1998 and promissory note was allegedly executed after three years, which disconnect remained unexplained.
9. In view of the aforesaid discussion, there is no need to discuss the issue of effect and consequences of opinion of handwriting expert - when execution of the promissory note and consideration thereof remained unproved, making its non-existence highly probable. The judgments referred by learned counsel for the respondent are distinguishable and lend no support to respondent' s case.
10. In the circumstances, the prepondera nce of probability is against the respondent, hence claim on the basis of promissory note was not sustainable in law. The judgment impugned suffers from gross illegalities and unsustainable in the wake of deficient evidence qua proof of execution of promissory note and underlying consideration.
11. Consequently , the appeal is allowed, judgment and decree dated 13.12.2010 is set-aside and suit of the respondent stands dismissed. No order as to the costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.