MUHAMMAD RAZA QURESHI, J. None of the parties appeared before this Court. Same was the situation on previous dates of hearings i.e. 09.09.2021 and 12.12.2019. Having left with no option this Court instead of dismissing Appeal for non-prosecution is deciding the same on its merits. This case is listed in red cause list and is decided on the basis of record of this Court as well as of learned Court below.
2. The instant Regular First Appeal calls into question the legality and propriety of Judgment and Decree dated 12.01.2012 passed by learned District Judge, Khanewal in a Suit bearing No.06 of 2011 filed under the provisions of Order XXXVII of Code of Civil Procedure, 1908.
3. The brief facts essential for adjudication of the instant Appeal are that through his Suit, the Respondent Mian Maqbool Ahmad sought recovery of Rs.125,000/- on the basis of instrument i.e. promissory note dated 25.11.2008. The contents of the plaint disclose that the suit amount was borrowed by the Appellant/Defendant as a loan, and in front of witnesses the Respondent paid the suit amount to the Appellant/Defendant. To secure the suit amount, the Appellant/Defendant executed a Promissory note dated 25.11.2008 affixing his picture and thumb impressions in presence of witnesses namely Sadiq Hussain and Muhammad Saeed. The debt so claimed was promised to be repaid within a period of two years. However, after lapse of period agreed between the parties, the Appellant refused to return the amount and adopted delaying tactics.
4. The Appellant contested the Suit and denied the execution of any promissory note or receipt in respect thereof. However, the Appellant conceded that the Respondent/Plaintiff was known to his elder brother and the Appellant/Defendant through his brother borrowed an amount of Rs.25,000/- from the Respondent/Plaintiff and to secure the said amount, the Appellant affixed his signatures on few documents, however, upon grant of leave the Appellant contended in his written statement that he has returned that amount to the Respondent. The Appellant in his written statement took a stance that actually he had borrowed Rs.25,000/- through his brother and the Respondent/Plaintiff through a forgery had mentioned the said amount of Rs.25,000/- as Rs.125,000/-.
5. From the divergent pleading of the parties, the learned Court below framed following issues:
1. Whether the plaintiff is entitled to recover Rs.125,000/- on the basis of pronote and receipt dated 25-11-2008? OPP
2. Whether the suit has been filed to harass the defendant, hence defendant is entitled to recover special costs under section 35-A, C.P.C.? OPD
3. Whether the pronote and receipt in dispute are without consideration, if so its effect? QPD
4. Relief.
6. The Respondent/Plaintiff personally appeared for his deposition as PW-1 and produced in evidence duly executed promissory note as Exh-P1 and receipt in support thereof as Exh-P2 and deposed that thumb impressions on the subject matter promissory note were affixed by the Appellant/Defendant before Notary Public. The witnesses of promissory note namely, Sadiq Hussain and Muhammad Saeed were produced 'in evidence as PW-2 and PW-3 respectively who supported the statement of the Respondent/Plaintiff by deposing that the suit amount was handed over by the Respondent to the Appellant in their presence and all of them went to District Court, Khanewal, wherein the Appellant/ Defendant affixed his thumb impressions and the subject matter promissory note which was notarized by the Notary Public in their presence. The Respondent/ Plaintiff also produced Ch. Rasheed Ahmad, Advocate/Notary Public as PW-4 and during cross- examination he deposed that PW-1 to PW-3 and Appellant/Defendant got the subject matter promissory note notarized. In rebuttal only Appellant/Defendant appeared in support of his defence as DW-1.
7. Through the Impugned Judgment and Decree, the learned Court below gave issue wise findings and decreed the Suit in favour of the Respondent/Plaintiff. Hence, the instant Regular First Appeal.
8. According to the contents of the Appeal, the Impugned Judgment and Decree are against the law, facts and record and the Appellant never executed the subject matter promissory note which is without consideration. The amount borrowed by the Appellant was returned to the Respondent, who misused the document, upon which he put his thumb impressions. It is also challenged that the Respondent/Plaintiff was not holder of promissory note in due course of law and the subject matter promissory note was inadmissible in evidence and the Impugned Judgment and Decree suffered from misreading and non-reading of evidence, hence, nullity in the eyes of law.
9. Record of the learned lower Court has been examined. The findings contained in the Impugned Judgment and Decree on Issue No.1 regarding entitlement of the Respondent/Plaintiff on the basis of subject matter promissory, note are not only strong but also reflect the due and able consideration of pleadings, evidence and respective stance of the parties.
10. This Court has also examined the record and analyzed the evidence led by respective parties and it is observed that incidentally in his written statement, the Appellant contended that he has no introduction with the Respondent/Plaintiff, but conceded that the Respondent/ Plaintiff was well known to his elder brother. Likewise, the Appellant/Defendant conceded that he borrowed an amount of Rs.25,000/- from the Respondent/Plaintiff. The Appellant also conceded that he put his thumb impressions on some documents securing the borrowed amount from the Respondent/ Plaintiff. Interestingly, in his depositions as DW-1, the Appellant conceded that he affixed his thumb impressions on papers and also conceded that the Respondent/Plaintiff obtained his picture. In his examination-in-chief, the Appellant deposed that he borrowed an amount of Rs.25,000/- for his elder brother Allah Yar (who was never produced in evidence), but during cross-examination he admitted that said amount was borrowed for his own use. Likewise, in the cross-examination, the Appellant conceded that while making repayments, no one accompanied him nor he obtained any receipts of those repayments. Again interestingly, the Appellant in his cross-examination admitted as follows: "I put my thumb impressions on the document. The thumb impressions on Exh-P1 and receipt are that of mine."
11. This Court has observed serious contradictions in the evidence of the Appellant and after such a glaring admissions in his cross-examination, there was no need for the Respondent to produce any evidence in rebuttal whose deposition was even otherwise consistent with his Suit and also consistent with the depositions of PW-2 to PW-4.
Therefore, in terms of law, once in affirmative evidence the Respondent/Plaintiff had discharged his onus, the same shifted to the Defendant who has an opportunity to rebut the same through trustworthy and reliable evidence. Conversely, this Court observes that not only serious contradictions in his deposition, but also note categorical admission of his thumb impressions on Exh-P1 and Exh-P2. From the lower Court record, this Court has also examined subject matter promissory note as well as receipt annexed therewith, which clearly reflect that the suit amount has been mentioned in Urdu as well as in numbers in three different columns and even the receipt describes the half of suit amount as Rs.62,500/-, therefore, the stance of the Appellant that through forgery, the amount of Rs.25,000/- has been mentioned as Rs.125,000/- represents a concocted story and the Appellant, in his depositions actually lied through his teeth.
12. This Court holds that the Respondent/Plaintiff by proving the existence, execution and contents of promissory note had passed all the tests laid down by the law and Qanoon-e-Shahadat Order, 1984 and the Appellant failed to impeach the Respondent/Plaintiff evidence, therefore, the contention of the Appellant that the Respondent/Plaintiff was not holder of promissory note in due course of law or the subject matter promissory note was inadmissible in evidence, has no foundation and is declared meritless.
13. Section 4 of Negotiable Instruments. Act, 1881 defining promissory note is reproduced hereunder: "4. "Promissory note." A "promissory note; is in an instrument in writing (not being a bank-note or a currency note) containing an unconditional undertaking signed by the maker, to pay on demand or at a fixed or determinable future time a certain sum of money only to, or to the Order of a certain person, or to the bearer of the instrument."
14. In terms of law, for a promissory note, following conditions have 'been set' forth:
(i) on unconditional undertaking to pay;
(ii) the sum should be sum of money and should be certain;
(iii) the payment should be to or to the order of a person who is certain or to the bearer of the instrument; and
(iv) the maker should sign it.
15. If these four conditions are present, a document qualifies as a promissory note and in terms of law if its execution has been proved in evidence it attracts presumption under the applicable provisions. So far as the contents and existence of the subject matter promissory note are concerned, this Court holds that the Respondent/Plaintiff had succeeded in proving the same.
16. For determination of the fate of the case, Section 118 of Negotiable Instruments Act, 1881 is reproduced hereunder: "118. Presumptions as to negotiable instruments. Until the contrary is proved, the following presumptions shall be made:
(a) 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 holder 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 lawful 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."
17. There is initial presumption that the Negotiable Instrument is Made, drawn, accepted or introduced for consideration, but under the law this is a rebuttable presumption and onus is on the person denying consideration to allege and prove the same. Reliance in this regard is placed on case titled "Fine Textile Mills Ltd., Karachi v. Haji Umar" PLD 1963 Suprem e Court 163 and "Syed Kauser Abbas Shah v. Sardar Khan" 2005 YLR 3321.
18. When the law prescribes that presumption shall be attached to a particular fact, the said fact has to be presumed to be true unless otherwise is proved by the party alleging the same. The term "until the contrary is proved" in the beginning of Section 118 of the Act indicates that it shall be the responsibility of the person who claims that the instrument was executed without consideration to prove the reasons why it was so executed. Once this is done, the onus is shifted to the holder of the instrument. This presumption unless rebutted is statutory and mandatory and the person who wishes to dispel it must furnish proof to the contrary. In a case where a person, challenges the consideration of a Negotiable Instrument does not adduce satisfactory evidence or absence of consideration or where no evidence is produced, the statutory presumption under Section 118 comes into play to the effect that the Negotiable Instrument which in the instant case is promissory note was made or drawn for valid consideration. Reliance in this regard is placed on "Shell Pakistan Ltd. through Attorney v. Aero Asia International (Pvt.) Ltd. through Chief Executive and another" 2008 CLD 996.
19. In the facts and circumstances of instant Appeal, the subject matter promissory note was lawfully proved and presumption attached to G it under Section 118 of the Negotiable Instruments Act, 1881 was not rebutted or proved to be contrary by the Appellant/Defendant, rather the admissions mentioned above in the cross-examination demolished the whole defence and the grounds agitated in the instant Appeal. A simple denial in his evidence or replying to every sentence, the question or suggestion in the negative in pleadings or depositions also operates against the Appellant. It is settled position of law as well as equity that law would help a person who controverted the controversies, but the one who denied everything, would lose credibility.
20. The Respondent/Plaintiff had lawfully succeeded to prove his claim through trustworthy oral evidence and reliable and proved documentary evidence. Conversely, the Appellant not only miserably failed even to rebut the presumption attached to the subject matter promissory note but by his admissions has completely demolished his own case now being canvassed through the instant Appeal.
21. In view of what has been discussed above, the Impugned Judgment and Decree are maintained and instant Regular First Appeal being meritless is dismissed with no order as to costs.