JUDGMENT SH. HAKIM ALI, J.- This RFA emanates from the following facts:-
(i) Jam Abdul Hameed Shahid, appellant, who was plaintiff in the suit, had filed a suit for recovery of Rs. 49,000/- on the basis of pronote and receipt dated 11.1.1997 against Liaqat AN, defendant- respondent before the learned Additional District Judge, Sub-Division, Khanpur on 16.6.1998. He had prayed for grant of Rs. 200/- per day also as penalty from 15.5.1997 upto the recovery and payment of money. According to the averments of the plaint, amount of Rs. 49,000/- was paid to the defendants as loan in the presence of witnesses and the defendant had, therefore, executed the above-mentioned pronote in his favour. Alongwith pronote and receipt, an affidavit was also got written from the defendant with regard to the above transaction. The defendant applied for grant of permission to appear and defend the suit, which was granted to him unconditionally. The defendant-respondent filed the written statement raising the plea that Rs. 35,000/-, in fact were paid by the plaintiff to him through cheque drawn on National Bank of Pakistan, Feroze Branch, while Rs. 14,000/- were entered and added as interest on the aforesaid transaction. He also took the plea of payment of Rs. 28,000/- to the plaintiff. For the remaining amount of Rs. 7,000/- he admitted to that extent his liability for the payment.
(ii) Issues were framed on 24.2.1999, which are reproduced hereunder:- ISSUES
(1) Whether the plaintiff is entitled to get Rs. 49,000/- plus Rs. 200/- per day as profit i.e.f. 16.6.1996 from the defendant? OPP
(2) Whether the suit has not been verified, if so its effect? OPD
(3) Whether the plaintiff has not come with clean hands in the Court? OPD
(4) Whether the disputed pronote is without consideration? OPD
(5) Relief.
On 11.12.1999 an additional issue was also framed which is as under:- "4-A. Whether the plaintiff has got no money landing Licence, if so its effect? OPD"
(i.e) The parties led their evidence, oral as well as documentary. The plaintiff himself appeared as PW-1 which Sh. Saeed Ahmad, Scribe as PW-
2. Muhammad Aslam as PW-3 and Haq Nawaz, marginal witness of pronote and receipt, got recorded his statement as PW-1. Into documentary evidence, pronote and receipt were produced as EX.P-1 and Ex.P-2 while the affidavit which was brought on record was not produced into the evidence, in rebuttal, defendant himself appeared as DW-1 and produced in his evidence, Nazir Ahmad as DW-2. Certified copies of the plaints with regard to the suits filed by Abdul Hameed, plaintiff against other persons on the basis of promotes and receipts were produced into evidence as Ex.D-1 to Ex.D-5 and the evidence of the defendant was closed on 11.5.2000. The plaintiff was given a chance to rebut the evidence of the defendant but on: the above date, he opted to close his evidence as his counsel stated that the plaintiff was not ready to produce any evidence in rebuttal. Learned Additional District Judge (Trial Court) after appreciating the pros and cons of.
Evidence, decrees the suit on 21.5.2000 upto the extent of Rs. 15,000/- only. Against this judgment and decree, the plaintiff has filed the instant Regular First Appeal and has prayed for the grant of decree for the remaining amount of Rs. 34,000/- alongwith costs.
2. Learned counsel appearing on behalf of the appellant has challenged the validity of the impugned judgment and decree passed by the learned Trial Court. According to the learned counsel, the learned Trial Court erred in law while it had partially passed the decree on the basis of pronote and receipt. His concise and precise argument is that after the admission of the execution of pronote and receipt, the presumption of Section 118 of the Negotiable Instruments Act was to be raised in favour of the plaintiff and he should have been granted the decree for the full amount entered into and shown in the pronote and receipt.
3. Rebutting the arguments of the learned counsel for the plaintiff-appellant, learned counsel appearing on behalf of the respondent has replied that the impugned judgment and decree passed by the learned Trial Court was valid in law as it had evaluated the evidence and after its appreciation, had passed the decree for the amount which was found due against the defendant- respondent.
4. Considering the arguments and examining the record in detail. I have reached to the conclusion that the execution of pronote and receipt although admitted by the defendant yet a plea was raised by him that the amount showing in the pronote and receipt was never paid to him and that a sum of Rs. 35,000/- only were paid to him through a cheque. This version and assertion of the defendant was admitted by the plaintiff himself during the trial, so burden to prove otherwise could not be placed upon the defendant, it was the plaintiff who while appearing as witness into his evidence deviated from his on version as was put forward by him in the plaint and thus neglected by his on conduct to raise the above-noted presumption. During the production of oral evidence, the plaintiff in act admitted the version of the defendant and, thus, the sanctity of pronote and receipt as was to be raised under Section 118 of the Negotiable Instruments Act, 1881 was got lost by the admission and the action of the plaintiff himself, it may be clarified here that presumption under Section 118 of the Negotiable Instruments Act is rebuttable. The different self- contradictory form of pleas raised by the plaintiff in his pleadings and at the stage of evidence have tarnished the image of sanctity attached to document the presumption of which was to be raised by the compulsive force of Section 118 of the Negotiable Instruments Act. In case where different versions and pleas are brought which are contrary to the written document i.e. Pronote and receipt, burden of proving the consideration would shift to the shoulders of the plaintiff unless the claim in part or in whole is admitted by the defendant, in the instant case the plaintiff had to prove that Rs. 49,000/- were paid to defendant in cash as pleaded by him in is plaint through the pronote and receipt. To prove this point, the evidence of the plaintiff has not been brought by him. In Zohra Jan v. Rajan Bibi (AIR 1915 Lahore 86(2) the onus on he plaintiff was placed to prove the consideration when he was forced to admit in pleadings that consideration had not passed. In G. Venkatareddi v. P. Nagireddi (AIR (38) 1951 Madras 851) when different forms of consideration from the pronote were pleaded, the onus to prove was shifted to the plaintiff, in Ali Muhammad and 2 others v. Gu/fam and another (PLD 1983 Karachi 99) the presumption of Section 118 of the Negotiable Instruments Act was held rebuttable which could be refuted by the production of proper evidence or by the holder through admission. If the form of consideration shown in the instrument is proved or admitted to be untrue, the presumption would go away with the wind.
5. The learned Trial Court had rightly held that Rs. 35,000/- were only lent to the defendant as was admitted by the plaintiff himself in his statement and the marginal witness produced by him into the evidence. With regard to the payment of Rs. 14,000/- statements of PW-3 Muhammad Aslam and PW-4 Haq Nawaz have materially differed from each other, therefore, the payment of this amount of Rs. 14,000/- in cash was not proved by the plaintiff through any cogent evidence.
6. As regards the payment of Rs. 28,000/- by the defendant in the loan amount of Rs. 35,000/-, obtained by the defendant, plaintiff has failed to bring any evidence on the record by closing his rebuttal evidence. The payment of Rs. 28,000/- as alleged and asserted by the defendant was rightly held to have been paid to the plaintiff, in the last relief paragraph of the judgment, the learned Trial Court has granted the decree to the extent of Rs. 15,000/- to the plaintiff but how this amount was considered due is shrouded in mystery and explanation for passing the decree for said amount was not forthcoming. But, the failure of the defendant to challenge it has refrained me to reverse or upset the decree, therefore, maintaining the impugned decree I dismiss the appeal of the plaintiff-appellant with no order as to costs.