Anwaar Hussain, J. This Regular First Appeal is directed against judgment and decree dated 18.10.2017, passed by the Additional District Judge, Jahanian in a suit, instituted by the respondent against the appellant, under Order XXXVII, Code of Civil Procedure, 1908 ("CPC"), for recovery of Rs.1,000,000/-.
2. By way of factual background, it has been noted that the respondent, in his suit, averred that on 13.03.2013 the appellant came to the respondent and demanded loan of Rs.1,000,000/-, which was extended to him and pronote as well as the receipt were executed, with the understanding that the said amount will be returned by 15.03.2015, however, on demand, the needful was not done and the appellant defaulted in his contractual obligation. The suit was contested by the appellant. Out of the divergent pleading of the parties, the following issues were framed: "ISSUES:
1. Whether the plaintiff is entitled to get decree for recovery of Rs:10,00,000/- (ten Lakh) on the basis of pronote, as prayed for, against the defendant? OPP
2. Whether the plaintiff has no cause of action or locus standi to file suit against the defendant, hence suit is liable to be dismissed? OPD
3. Whether the plaintiff is stopped by his words and conduct to file the suit? OPD
4. Whether the suit has been filed only to harass, tease and blackmail the defendant? OPD
5. Whether the plaintiff has not come in the court with clean hands? OPD
6. Whether the pronote in dispute was not issued in favour of plaintiff by the defendant and the alleged pronote is forged and fictitious? OPD
7. Whether the suit of the plaintiff is false and fictitious and liable to be dismissed and defendant is entitled to get special cost under section 35-A CPC? OPD
8. Relief."
After recording evidence of the parties, the suit of the respondent was decreed.
3. Learned counsel for the appellant submits that the appellant took a specific stance/defence that a criminal case was registered by the respondent against son-in-law of the appellant for alleged murder of his (respondent's) son and in order to record a compromise, signatures of the appellant were obtained on blank papers in proceedings before a Panchait and the respondent misused the said papers to prepare the impugned pronote and/or the receipt. Adds that it belies the logic that a person whose son is murdered will lend money to the appellant who happens to be father in law of the accused. Further submits that two marginal witnesses have been shown to have attested the pronote and/or the receipt, however, only one of them appeared, whose testimony is full of contradictions. Contends that the testimony of the respondent, who appeared as PW.1, clearly depicts that he had no financial resources to lend huge amount of Rs.1,000,000/- to the appellant.
4. Conversely, learned counsel for the respondent submits that once the matter has been compromised, there was no reason for the respondent not lending money to the appellant. Argues that no one from the alleged Panchait appeared to depose that the appellant signed the blank papers. Adds that the second marginal witness acted in connivance with the appellant and therefore, refused to depose in favour of the respondent, and hence could not be produced. Avers that it is settled law that the attesting witnesses are not required to prove the execution of negotiable instrument and in this regard places reliance on the law laid down in case cited as "Allah Ditta v. Zulfiqar" (2023 CLC 905). Concludes that the DWs who appeared on behalf of the appellant had not uttered a single word to rebut the presumption attached to the promissory note.
5. Arguments heard. Record perused.
6. The points of determination put forth before this Court for adjudication can be articulated as under:
(i) Whether the appellant was able to rebut the presumption attached to the pronote under Section 118 of the Negotiable Instruments Act, 1881 ("the Act") to shift the burden back on the plaintiff to prove the execution of the pronote? and
(ii) Whether the two marginal witnesses are mandated to appear and prove the execution of pronote and what is the effect of non-production of the marginal witnesses?
7. In a suit for recovery on the basis of a negotiable instrument, there are certain presumptions attached to the same in terms of Section 118 of the Act as to the passing of consideration, date, time etc. Such presumptions have been created by law, however, the same are rebuttable and it is for the defendant to raise a defence to rebut the statutory presumptions. Section 118 of the Act reads as under: "118. Presumptions as to negotiable instrument-- (a) Of consideration; (b) as to date; (c). as to time of acceptance; (d) as to time of transfer; (e) as to order of endorsements (1) as to stamp; (g) that holder is a holder in due course. - Until the contrary is proved, the following presumptions shall be made,
(a) that every negotiable instrument was made or drawn of consideration, and that every such instrument, when it has been accepted, endorsed negotiated or transferred, was accepted, endorsed negotiated or transferred for consideration:
(b) that every negotiable instrument bearing a date was made or drawn on such date;
(c) "
(Emphasis supplied)
The defendant, in the suit, by setting up a probable defence can refute the said legal presumption as regards the date and time of execution as also the consideration. The same can be established by evidence or circumstances of the case, which can be culled out from the mouth of the plaintiff and his witnesses or even from such other attending circumstances through which the Court can be shown that the passing of consideration is improbable, doubtful or illegal, or that the circumstances are such that a reasonable prudent man would disbelieve lawful issuance/execution of the instrument. Here it is pertinent to observe that lending of money is part of human relation and of natural human conduct in a society. Therefore, the same needs to be seen and viewed through the prism of natural human conduct. Statutory presumptions like the one attached to the negotiable instrument are based upon the natural and/or established human conduct. Given the diversification and inherent variability of human conduct, such presumptions have been made rebuttable. It is also pertinent to observe that this Court has to keep in sight the fact that there is an inextricable interplay of presumptions and burden of proof as existence of presumption shifts the burden of proof on the other side. The presumptions under Section 118 of the Act merely shift the burden on the defendant to prove that the issuance of negotiable instrument was consequence of any fraud. In addition to the documentary or oral evidence, the defendant in a suit under Order XXXVII, CPC can always rely on existence of certain fact(s) based upon the existence of some other fact to set up probable defence that concomitantly shift the burden of proof. Under Article 129 of the Qanun-e-Shahdat Order, 1984 ("QSO"), the Courts are empowered to entertain the presumption of certain facts to have happened in the common course of natural events and human conduct, which reads as under: "129. Court may presume existence of certain facts: The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case."
(Emphasis supplied)
Bare perusal of above provision unambiguously reads that the Court while deciding a case can look into the facts relating to the human conduct. Thus, the statutory presumption under Section 118 of the Act can be dislodged by the Court itself to shift the burden back on the plaintiff to prove consideration and/or genuineness of negotiable instrument by presuming the existence of certain facts in consonance with the common course of natural events and human conduct. In the present case, it is admittedly not a case involving business relation inter se the appellant and respondent, rather is the one of money lent to the appellant by the respondent. Unlike the cases involving established business relationship between the parties, the cases involving negotiable instruments based upon lending money call for greater circumspection on the part of the Courts. For instance, where the relations inter se the parties are cordial and long-lasting and/or are those of involving trust in the normal and natural course of human conduct, such presumption as carried by negotiable instruments, under Section 118 of the Act, would call upon the defendant to rebut such presumption with plausible evidence to shift the burden back on the plaintiff. However, cases where the parties are alien to each other and/or have strained relation to such an extent that they were involved in criminal litigation involving commission of heinous offence under Section 302, Pakistan Penal Code, 1860, such presumption would subside by denial of the defendant because this is contrary to common course of natural events and human conduct that a person will lend money to someone whose close relative has allegedly murdered son of the lender. Learned counsel for the respondent could not deny the factum of registration of the criminal case by the respondent against son-in-law of the appellant for alleged murder, however, took the plea that a compromise between the parties had taken place and the relations became cordial between the parties, therefore, the respondent agreed to lend money to further strengthen relations between the parties. The said contention of learned counsel for the respondent belies the logic that when the respondent alleged that son-in-law of the appellant had murdered his (respondent's) son that he would lend such a huge money to the appellant even if matter had been compromised. In this view of the matter, the appellant had been able to successfully rebut the presumption of correctness attached to the pronote as a result of which the burden of proof shifted back to the respondent to prove that the pronote was executed lawfully and this crucial aspect of the case has been ignored by the Trial Court.
8. The matter can also be examined from another perspective. It is admitted fact that the respondent was driver by profession from where he can earn hardly to live comfortably let alone that he had savings to lend others. Therefore, it is difficult to believe that he had an amount of Rs.1,000,000/- to lend the same to the appellant. Financial position of the plaintiff is a relevant factor in such like matters. Case reported as "Salar Abdur Rauf v. Mst. Barkat Bibi" (1973 SCMR 332) is referred in this regard. Therefore, lending of such an amount by the respondent to the appellant having the kind of job as held by the respondent seems improbable that he would have lent such an amount particularly when the same is considered alongwith other facts examined hereinabove.
9. Adverting to the second point of determination as to whether the two marginal witnesses are mandated to appear and prove the execution of the pronote and what is the effect of non- production of the marginal witnesses, it would be relevant to reproduce Article 79 of the QSO, which reads as under: "79. Proof of execution of document required by law to be attested: If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving Evidence.
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
(Emphasis supplied)
It is unequivocal from the bare reading of the above provision that it comes into play only if a particular document is required by law to be attested. In the instant case, the document in question is pronote which is not required by any law to be attested by two witnesses. Therefore, when a document is not required by any law to be attested, the failure to produce marginal witness is not fatal and detrimental to the case in such situation where the defendant of a case under Order XXXVII, CPC fails to put up a probable defence. However, this rule is not applicable in the present case, as observed above, since appellant showed probable defence and the burden to prove had shifted back to the respondent on account of denial by him to have executed any pronote and/or the receipt, therefore, the respondent was obligated to prove the issuance and execution of the pronote by producing both attesting witnesses of the pronote.
10. Having observed as above, it is evident from record that out of the two attesting witnesses, only Chaudhry Ghulam Mustafa appeared as PW.2 to support the version of the respondent, however, the other attesting witness, namely, Munir Ahmed, did not come in the witness box. When confronted with, learned counsel for the respondent contends that Munir Ahmed joined hands with the appellant, therefore, he refused to depose in favour of the respondent. This is not a convincing argument. The respondent could have moved the Court to summon the said witness through process of Court and could have cross-examined him so as to prove his stance, however, no such effort was made. In the circumstances, an inference can be drawn that had Munir Ahmed appeared before this Court, he would have deposed against the respondent and non-production of second attesting witness of the pronote was certainly fatal. Moreover, Ghulam Mustafa (PW.2) deposed as under: Similarly, Muhammad Hanif Sajid, PW-3 stated as under: (Emphasis supplied)
Scanning of the evidentiary resume of the case reveals that animosity between the parties is admitted. Similarly, PW.2 also admitted that signatures of the appellant on the backside of pronote and the receipt are different. PW.3, who is a deed writer, deposed that the pronote is not recorded in his record and he is unable to produce any such 11. Absence of the second attesting witness of the pronote cum receipt as also the shortcomings in the oral and documentary record. He also admitted that amount mentioned in the pronote was not given to the appellant by the respondent in his presence. These shortcomings are fatal for the respondent and has also escaped notice of the Trial Court.
11. Absence of the second attesting witness of the pronote cum receipt as also the shortcomings in the oral and documentary evidence of the respondent propels this Court to conclude that the presumption of correctness attached to the pronote was successfully rebutted by the appellant by putting forth probable defence and it was obligatory on the part of the respondent to prove the issuance and lawful execution of the pronote which the appellant failed to do. As a natural corollary, the appeal in hand is allowed and the impugned judgment and decree is set aside and the suit of the respondent is dismissed. No order as to cost.