2022 CLC 2115
Arts.72 , 75 & 79---Civil Procedure Code (V of 1908), O.XXXVII, Rr.1 & 2 ---Promissory note---Proving the existence, execution and contents of promissory note---Respondent/plaintiff by proving the existence, execution and contents of promissory note had passed all tests laid down by the law and the Qanun-e-Shahadat Order, 1984 and appellant failed to impeach the respondent's evidence---Contention of appellant that respondent was not holder of promissory note in due course of law or the subject matter promissory note was inadmissible in evidence had no foundation and was declared meritless-
2022 CLC 2115
S.118-----Term "until the contrary is proved" in Negotiable Instruments Act, 1881---Meaning---Term "until the contrary is proved" in the beginning of S.118 of the Act indicates that it should be the responsibility of the person who claims that the instrument was executed without consideration to prove the reasons why it is so executed---Once this is done, the onus shifts to the holder of the instrument---Said presumption unless rebutted is statutory and mandatory and the person who wishes to dispel it must furnish proof to the contrary---In a case where a person, who challenges the consideration of a Negotiable instrument does not adduce satisfactory evidence or absence of consideration or where no evidence is produced, the statutory presumption under S.118 of the Act comes into play to the effect that the Negotiable instrument was made or drawn for valid consideration
S.118---Presumption as to Negotiable instrument---Initial presumption---Onus to prove----Initial presumption is that the Negotiable instrument is made, drawn, accepted or introduced for consideration , but under the law this is a rebuttable presumption and onus is on the person who denies consideration to allege and prove the same.
O.XXXVII Rr.1 & 2---Negotiable Instruments Act (XXVI of 1881), Ss.4 & 118---Negotiable instrument---Proof---Presumption as to Negotiable instrument---Admission in cross-examination---Effect---Respondent/plaintiff filed a suit for recovery of sum on basis of promissory note before Trial Court---Appellant/defendant contested the suit and denied the execution of any promissory note or receipt in respect thereof---Trial Court decreed the suit against appellant/defendant---Held, that appellant in his written statement stated that he had no introduction with the respondent, but conceded that respondent was well known to appellant's elder brother; that he borrowed an amount from the respondent; and appellant had also conceded that he put his thumb impressions on some documents securing the borrowed amount from respondent----In appellant's depositions as witness, he conceded that he had affixed his thumb impressions on papers and that the respondent obtained his picture---In appellant's examination-in-chief ,he had deposed that he borrowed an amount for his elder brother "A.Y" who was never produced in evidence, but during cross-examination appellant had admitted that said amount was borrowed for appellant's own use----Appellant admitted that while making repayments, no one accompanied him nor he obtained any receipts of those repayments---Serious contradictions were found in the evidence of appellant and after such glaring admissions in appellant's cross-examination ,there was no need for the respondent to produce any evidence in rebuttal whose deposition was even otherwise consistent with his suit and also consistent with the depositions of other witnesses---Once in affirmative evidence respondent had discharged his onus, the same was shifted to appellant who had an opportunity to rebut the same through trustworthy and reliable evidence---Not only serious contradictions were found in appellant's deposition, but also categorical admission of appellant's thumb impressions on promissory note and receipt of promissory note---Promissory note as well as receipt annexed in plaint had clearly reflected that the suit amount was mentioned in Urdu language as well as in numbers in three different columns and even the receipt described the half amount---Stance of appellant that through forgery, amount of Rs. 25000/- had been mentioned as Rs.125,000/- represented a concocted story---Subject matter was lawfully proved and presumption attached to it under S.118 of the Negotiable Instruments Act, 1881, was not rebutted or proved to be contrary by appellant/defendant, rather the admissions made by appellant/ defendant in his cross-examination demolished the whole defence and the grounds agitated in the appeal---Simple denial in appellant's evidence or reply to every sentence, the question or suggestion in the negative in pleadings or depositions also operated against appellant.
Monetary value of dowry Article not mentioned in decree --- Effect --- Provisions of O.XX , R.10 of the C.P.C were not strict sensu applicable to a decree obtained in a family suit in view of S. 17 of the Family Courts Act , 1964 --- No provision existed in the Family Courts Act , 196 similar or corresponding to O.XX , R.10 of the C.P.C --- Decree passed under the Family Courts Act , 1964 for recovery of dowry articles including gold ornaments or other moveable property would be lawful and executable even if did not state the monetary value payable in the case moveable property was not delivered
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