MUHAMMAD AKHTAR Versus ZAHAR KHAN

ORDER

The brief facts out of which the present appeal arises are that appellant executed promissory note and receipt on 1-6-1999 and had promised to return the amount mentioned therein on demand. The appellant failed to return the said amount on demand. The respondent being aggrieved filed suit for recovery of Rs.300,000 under Order XXXVII of C.P.C. in the Court of Additional District Judge, Jhang. The appellant filed application for leave to defend the suit which was allowed. In view of the divergent pleadings of the parties the trial Court framed the following issues:--

(1) Whether the defendant received Rs.3,00,000 as loan from the plaintiff and executed promissory note in the presence of the witnesses? OPP.

(2) Whether the plaintiff has got no cause of action to file the present suit? OPD.

(3) Whether the plaintiff is estopped to sue by his words and conduct? OPD

(4) Whether the suit is false and frivolous and the defendant is entitled to special costs under section 35-A of C.P.C.? OPD

(5) Whether the suit is liable to be dismissed in view of preliminary Objection No.5? OPD

(6) Relief.

The trial Court decreed the suit vide impugned judgment and decree dated 14-1-2004. Hence the present appeal.

2. Learned counsel of the appellant submits that onus of Issue No.1 was on the respondent; therefore, appellant could not produce evidence in view of the aforesaid circumstances. As such the impugned judgment and decree is not sustainable in the eyes of law. He further submits that on account of putting onus on respondent the appellant was not in a position to defend the suit in proper manner, therefore, impugned judgment and decree is hit by principle of natural justice. He further submits that appellant/defendant never got any amount of loan from the respondent/plaintiff and he had executed promissory note and receipt in favour of respondent/plaintiff only as surety. This fact was not considered by the trial Court in its true perspective.

3. Learned counsel of the respondent submits that initial burden was upon the defendant in view of section 118 of Negotiable Instruments Act, 1881. The appellant failed to discharge his initial onus as the appellant accepted the execution of promissory note and receipt. Therefore, presumption is in favour of the respondent and impugned judgment and decree is in accordance with the law laid down by the Superior Courts.

4. We have given anxious consideration to the contentions of the learned counsel of the parties and perused the record.

5. It is admitted fact in the present case that the appellant/defendant admitted the execution of pro note/receipt with the objection that pro note/receipt was executed as surety. In other words execution of the document was admitted by the appellant/defendant. Therefore, burden to prove that the document in question was executed as surety was on the appellant/defendant but he could not prove this fact by producing evidence. Therefore, trial Court was justified to decree the suit against the appellant/defendant which is in consonance with the law laid down in Farid Akhtar Hadi's case 1993 CLC 2015. It is settled principle of law that under section 118 of Negotiable Instruments Act, 1881 there is an initial presumption that negotiable instrument is made, drawn, accepted and endorsed for consideration although this presumption is rebutable yet it is settled law that the onus is on the person denying consideration to allege and prove the same as the law declared by the Honourable Supreme Court while interpreting aforesaid provision of law in Haji Karim's case 1973 SCMR 100. The aforesaid proposition of law is also supported by the following judgments:--

Khalid Mukhtar'scase 1996 CLC 741;

Muhammad Boota's case 1979 SCMR 465;

Muhammad Rafiq's case 2001 CLC 318;

Muhammad Yousafs case PLD 1993 Lahore 244.

The question of law has also been settled by a Division Bench of this Court in Muhammad Ashiq v. Niaz Ahmad PLD 2004 Lahore 95 laid down the following principle:--

"It is settle principle of law that making of payment in connection with promissory note does not require to be proved and it is sufficient if the execution of the promissory note is either proved or admitted."

In view of what has been discussed above, we do not find any infirmity or illegality in the impugned judgment and decree of the trial Court. This appeal has no merit and the same is dismissed.

H.B.T./M-122/L Appeal dismissed