1. MUHAMMAD GUL, J.-This petition for special leave is from the judgment of a learned Single Judge of the Peshawar High Court in second appeal arising out of a suit brought by the petitioner herein for the recovery of Rs. 10,208 on the basis of a pronote dated 28-i1-1962 alleged to have been executed in his favour by Rasool Bhai Fingut, since deceased, represented by his widow Mst. Barkat Bibi, the respondent, herein.
2. The suit was dismissed by the trial Court on the ground that the consideration for the pronote was not proved. On appeal by the petitioner the learned Additional District Judge, Peshawar, basing himself on the provisions of section 118 of the Negotiable Instruments Act, 1881, reversed the judgment of the trial Court and decreed the petitioner's claim on the ground that on the proof of the execution of the pronote it must be presumed to be for consideration unless there is evidence to the contrary to displace that presumption. On further appeal by the respondent, the learned Single Judge of the High Court reversed the decision of he first appellate Court and restored that of the trial Court, holding that the petitioner having undertaken to show that the pronote was for consideration actually paid at the time of execution of the pronote, but having failed to produce credit-worthy evidence in that behalf cannot turn round to invoke the presumption under section 118 of the Act to make up for the deficiency in the evidence examined by him.
3. Before us, the learned counsel for the petitioner repeated the argument which prevailed in the first appellate Court and argued that the execution of the pronote having been proved by the evidence of its scribe Ghulam Muhammad and two attesting witnesses, Hazrat Shah and Abdul Qayyum, a foundation was laid for the presumption in section 118 of the Act of 1881 and it fell upon the respondent to prove affirmatively that the pronote was without consideration.
4. The view taken by the learned Single Judge is supported by the Division Bench cases: Uttam Chand-Ishar Das v. Hakim Mohammad Sharif (AIR 1932 Lah. 417) and Muhammad Shafi Khan v.
5. Muhammad Moazzam Ali Khan (AIR 1923 All. 214) noticed by the learned Single Judge. Learned counsel for the petitioner made no attempt to distinguish the instant case from the Lahore case.
6. He, however, argued that the authority of the Allababad case has eroded in view of a later case of that Court reported as Lal Gurwar Lal v. Dau Dayal (AIR 1935 All. 509).
7. In that case the defendant denied that he had executed any pronote in favour of the plaintiff. He also denied the passing of any consideration and pleaded that the document filed by the plaintiff had been obtained from him by practising fraud. It was held that "where the Court has after a consideration of the entire evidence recorded a clear finding one way or the other, then the finding is based not on a mere presumption but on the evidence, and has to be accepted. The decree was proper and the plaintiff therefore could not be allowed to take advantage of the weakness in the defendant's evidence that the want of consideration had not been satisfactorily established, when his suit was professedly not based on the bond." It is difficult to see how this case helps the petitioner. The learned Single Judge, upon a careful analysis of the entire evidence, had reached the definite conclusion that consideration for the pronote has not been proved.
8. It is noteworthy that one of the issues in the case was: "Whether Rasool Bhai Fingut borrowed Rs. 10,000 from the plaintiff on the basis of pronote dated 28- 11-62 and defendant alone is liable to repay this amount to the plaintiff?"
9. The petitioner never objected to the first part of the issue and having accepted the burden of proof proceeded to discharge it by examining the scribe and two attesting witnesses who testified not only the execution of the pronote but the actual passing of the consideration at the time of its execution. The evidence of Hazrat Shah and Abdul Qayyum is that the amount was laid on the table of the scribe who handed the same to Fingut. But Ghulam Muhammad when examined contradicted the above two witnesses in that he denied categorically that any amount was paid in his presence, or through him, and went on to say that Fingut was not known to him before.
10. Another remarkable fact in this case is that the petitioner initially instituted the suit in forma pauperis. It was only after his prayer to sue as a pauper was refused that he paid the requisite fee.
11. It is also in evidence that he is a man of no ostensible means ; he has no bank account and would eke out a living by working as auctioneer of the Rehabilitation Department on a commission which never exceeded Rs. 5 per thousand. But on his own admission even that source of meagre income had dried up before the execution of the pronote. As against this, it is admitted by him that Fingut was owner of considerable property. Why of all the persons Fingut should choose the petitioner as his financier is beyond one's comprehension. The fact that the petitioner did not sue Fingut during his lifetime is also a very significant factor in the case. In view of these extraordinary circumstances coupled with the infirmities in the evidence adduced by the petitioner, we consider his suit was rightly dismissed.
12. Accordingly, we dismiss this petition.