1. SALAHUDDIN AHMED, J.-This appeal by special leave of this Court is from the order of a Division Bench of the then High Court of West Pakistan, Karachi Seat, reversing the decision of the learned District Judge and restoring that of the subordinate Judge. The appeal arises out of a suit filed by respondent Shakil Ahmad against Hamid Hassan, predecessor-in-interest of the appellant for recovery of a sum of Rs. 5,000 claimed to be due to the plaintiff on a promissory note executed by Hamid Hassan.
2. In paragraph 1 of the plaint the plaintiff stated that defen--dant Hamid Hassan had borrowed Rs.
3. 5,000 from the plaintiff at Karachi "agreeing to repay at demand and by executing a pro--missory note for the said sum". The plaintiff asserted that although repayment of the said sum of Rs. 5,000 had been demanded repeatedly the defendant failed to repay the money.
4. The defendant resisted the claim of the plaintiff on the ground that he had received no consideration for the said promis--sory note and that he had executed the note at the Police Station under threat of criminal prosecution. The trial Court did not accept the defendant's version and decreed the suit in favour of the plaintiff.
5. On appeal preferred by the defendant the learned District Judge accepted the case of the defendant that the promissory note had been executed under duress and without the payment of any money. The judgment and decree of the trial Court was accordingly set aside and the suit dismissed.
6. On a second appeal preferred by the plaintiff the High Court came to the conclusion that the defendant had failed to prove that the promissory note had been executed without any consideration. The decision of the first appellate Court was accordingly set aside and that of the trial Court restored as already stated.
7. It has been contended before us on behalf of the appellant that the presumption arising under section 118 of the Negotiable Instruments Act is a rebuttable one, and that it has been rebutted by the statements of the plaintiff-respondent himself. Further--more the plaintiff having failed to discharge the onus put on or undertaken by him under Issue No. III to prove that he did in fact advance the loan of Rs. 5,000 under the said promissory note, the suit was rightly dismissed by the learned District Judge on the plaintiff's failure to do so.
8. Paragraph 1 of the plaint runs as follows :- "That the defendant above-named had borrowed Rs. 5,000 from the plaintiff at Karachi agreeing to repay at demand and by executing a promissory note for the said sum."
9. It appears from the evidence of plaintiff-respondent Shakil Ahmad that he had been introduced to the defendant through Mr. Mozaffar. The defendant was an inspector in the Civil Supplies Department. The plaintiff was a Sub-Accountant in the Bank of Bahawalpur drawing a monthly salary of Rs. 300 only, and also dealt in stocks and shares. The plaintiff claimed to have advanced loans to the defendant at different times amounting to Rs. 11,000. The plaintiff said he had lodged a report with Police of Arambagh, and the S. H. O. Had called the defendant to the Police Station. The plaintiff admitted that as he had no writing in proof of the loans he accepted the advice of his well- wishers and agreed to accept the sum of Rs. 5,000 only which the defendant said he could pay. In cross-examination the plaintiff said that their common friend Wahid Hassan used to be present whenever the former advanced loan to the defendant, and that the plaintiff used to withdraw from his bank account and pay the loans. The plaintiff unequivocally admitted that `At the time of execution of the pro-note nothing was advanced in cash'. He admitted that Exh. D. W. 1/1 was in his handwriting and that it had been written on the same day the promissory note was executed.
10. It is thus evident that the plaintiff in his deposition has con--tradicted his averments in paragraph 1 of his plaint. The evidence shows that it was unlikely on the part of the plaintiff to advance such a large amount by way of loan to the defendant and that without taking any receipt from him. The plaintiff neither examined Mr. Mozaffar, who had Introduced the former to the defendant, nor their common friend Wahid Hassan in whose presence the plaintiff claimed the loans had been paid to the defendant. The plaintiff did not even produce his bank state--ments to show that he had withdrawn money on different occa--sions in order to pay the loans. Excepting, therefore, the Ipse dixit of the plaintiff himself, who is undoubtedly an interested person, there is nothing to show that he paid the loans to the defendant. The defendant has denied the payment of the loan, and this has received ample support not only from the surround--ing circumstances of the case but also from the plaintiff's own statements that there is no receipt for the loans and that at the time of the execution of the promissory note nothing was advanced in cash.
11. The defence case that the promissory note was fictitious and had been obtained from him under duress has received ample support from Exh. D. W. 1/1 which is as follows :-- "Dear Mr. Hamid Hussain, I will withdraw the complaint which I have filed against you at the Aram Bagh Police Station in respect of a sum of Rs. 11,000 as the matter has been amicably settled between you and me. I have no complaint now left against you.
12. SHAKIL AHMED."
13. In these circumstances we have no hesitation in holding that the defendant succeeded in proving that there was no considera--tion for the promissory note in question. As the defendant was required to prove the negative, the plaintiff's own statement and the other evidence in the case, in our opinion, are sufficient to prove that there was no consideration for the promissory note.
14. In view of Issue No. III the onus was upon the plaintiff to prove that he had advanced loan of Rs.
15. 5,000 upon the promissory note in suit. The plaintiff having submitted to the trial of this issue undertook to prove that he had advanced the loan to the defendant. He however failed to prove the advance of the loan and the findings of the learned District Judge on these points having been based on evidence it should not have been interfered with by the High Court in second appeal.
16. The appellant has further contended that nevertheless he is entitled to rely upon the loans advanced to the defendant on earlier occasions as consideration for the promissory note in question, and in support of this contention he has relied on the case of Ramani Mohan Bhattacharjee v. Surjya Kumar Dhar and another (AIR 1943 Cal 22). In the case under report the defendant had admitted in his written statement the receipt of a certain sum of money in 1925 i.e. About 8 years before the date of the promissory note in question, but pleaded that this payment was on some other account. The defendant's explanation that the payment bad been received by him on some other account was however rejected. In these circumstances it was held that when the defendant himself had placed sufficient materials before the Court which enabled it to say that the payment of 1925 constituted the real consideration for the promissory notes In question, the Court should have decreed the plaintiff's claim even though it had found that there was no contemporaneous payment of the consideration at the execution of the promissory notes. It will thus be seen that the facts in the case under report were entirely different from the facts of the case before us. As we have already noticed, the plaintiff in the present case has not only admitted that there was no contemporaneous payment of consideration at the execution of the promissory note but also has failed to prove that he was able to pay the loans or that he had in fact paid the loans on earlier occasions. The defendant had categorically stated that the plaintiff never advanced any loan to him and he relied on the ambient circumstances in support of his assertion.
17. Another case cited in support of the appellant's contention is Salar Abdur Rauf v. Mst. Barkat Bibi (1973 SCMR 332). In this case the Court took notice of the fact that the plaintiff had accepted the burden of proving that the defendant had borrowed money from the plaintiff on the basis of the promissory note in question as was evident from the issue framed in the suit and that the plaintiff had failed to discharge this onus. This case lends some support to the appellants' case.
18. We accordingly allow this appeal but without any order as to costs, and set aside the order of the High Court and restore that of the learned District Judge whereby the suit was dismissed.