This appeal arises from a suit filed by Malik Muhammad Nawaz respondent against Muhammad Rafiq appellant for the recovery of Rs.55,500. The suit was based on a promissory note for the aforesaid amount and was, therefore, filed under Order 37, C.P.C. Before the District Judge, Multan.
The matter was entrusted to the learned Additional District Judge, Multan, who granted leave to appear and defend to Muhammad Rafiq appellant/defendant. The suit thereafter proceeded as a regular cause and both the parties led documentary as well as oral evidence in support of their respective contentions.
2. The pronote has been duly exhibited on record as Exh.P.I. The execution of the pronote has been admitted by Muhammad Rafiq appellant. D.W.2, who is brother-in-law of Muhammad Rafiq has also confirmed the execution of the pronote by Muhammad Rafiq.
3. It is contended on behalf of Muhammad Rafiq that the pronote alongwith a receipt were issued by him in favour of Muhammad Nawaz respondent because the respondent had acted as a surety for settlement of dispute between the appellant and some other persons who had filed a criminal case against Muhammad Rafiq. According to learned counsel for the appellant, Muhammad Nawaz acted as surety and a house belonging to Muhammad Rafiq was transferred to Muhammad Nawaz respondent by means of a registered sale-deed which was then re-transferred by Muhammad Nawaz respondent to the appellant's wife as part of settlement process. Learned counsel for the appellant contends that Muhammad Nawaz respondent appearing as P.W.1 has himself acknowledged in his cross---examination that no amount was paid by him to Muhammad Rafiq in the presence of the deed-writer. He also states that the receipt for the amount has not been exhibited. Lastly, he bas contended that the deed-writer had fraudulently prepared the pronote and receipt in connivance with Muhammad Nawaz respondent and signatures on the same were obtained from Muhammad Rafiq alongwith the other documents which were procured by the deed-writer as part of the settlement procedure.
4. The learned counsel for the respondent, on the other hand, has emphasized the fact that the pronote has been properly exhibited and is acknowledged both by Muhammad Rafiq appellant appearing as D.W. And by his brother-in-law Muhammad Riaz who appeared as D.W.1.
5. The documentary evidence read alongwith oral evidence shows that the pronote was, in fact, executed by Muhammad Rafiq, notwithstanding, the oral evidence given on his behalf to the effect that there was no consideration given for the pronote. The evidence of D.W.1, however, shows that the said witness, who is brother-in-law of Muhammad Rafiq appellant, was conscious that he was signing a pronote as a witness. He is an educated person. Consequently, his assertion that he thought that the pronote was a part of the other transaction whereunder the appellant transferred his house to Muhammad Nawaz respondent, does not ring true. Learned counsel for the appellant contends that the pronote Exh.P.I was not put to the appellant nor did he acknowledge the execution of the same. The execution, however, has been duly proved through the witness Muhammad Riaz who appeared as D.W.1 and through the statement of P.W.2 who is a witness to the pronote.
6. Learned counsel for the appellant has contended that the respondent has admitted that no amount was paid at the time of execution of the pronote should suffice for the purpose of holding that there was no consideration paid to Muhammad Rafiq appellant by Muhammad Nawaz respondent for the execution of the pronote. In law it is not necessary that payment should be contemporaneous with the execution of the pronote. In fact, a pronote can be executed to secure the payment of monetary obligations even where there is no debt or payment involved.
7. The evidence both documentary as well as oral, read as a whole, establish that the respondent had duly discharged the onus of proof placed on him in respect of Issue No.3 which being relevant is reproduced below: "Whether the plaintiff is entitled to recover the suit amount on the basis of pronote and receipt, dated 15-1-1997? OPD"
8. The learned counsel on 27-9-1999 had sought time to refer to the provisions of the Negotiable Instruments Act of 1881 to show that a pronote is not valid, if consideration for execution of the same is not contemporaneous with such pronote. The learned counsel has argued today that the instrument on the basis of which the decree has been passed against the appellant is not a promissory note but is a pronote. In this regard, he made reference to section 4 of the Negotiable Instruments Act, which defines a promissory note. The argument of the learned counsel for the appellant is that the word pronote has not been used in the Negotiable Instruments Act. This contention is correct. However, it has no relevance to the facts of the present case. It is the contents of the document which bring such document within the definition of a promissory note. The heading given to such document is not legally relevant.
9. In this view of the matter, it is clear that the document forming basis of the decree against the appellant is in fact a promissory note as defined in section 4 of the Negotiable Instruments Act even though it is described as a pronote.
10. Learned counsel did not refer to any provision of the Negotiable Instruments Act which would show that a promissory note is invalid, if consideration for execution of the same is not contemporaneous with such execution.
11. In this view of the matter, the present appeal fails and is, therefore, dismissed.