2023 C L C 905

[Lahore (Bahawalpur)]
Before Sultan Tanvir Ahmad, J
ALLAH DITTA----Petitioner
Versus
ZULFIQAR----Respondent
Civil Revision No.82-D of 2022, decided on 21st June, 2022.
(a) Negotiable Instruments Act (XXVI of 1881)---
----S.4---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79---Promissory note-
--Proof of execution of document required by law to be attested---
Competence and number of witnesses---Scope---Article 79 provides
that a document cannot be used as evidence until two witnesses at
least are called to prove execution, however, this requirement applies
only if that particular document is required by law to be attested---
Article 17(2) specifies that such requirement of attestation does not
apply when contrary is provided in any special law---Section 4 of the
Negotiable Instruments Act, 1881, provides that promissory note,
which is an unconditional undertaking, is only required to be signed
by maker---Negotiable Instruments Act, 1881, which is a special law,
does not require attestation by witnesses or provides for any bearing
of attestation or non-attestation on the instrument---Combined reading
of the above provisions of law makes it clear that neither any
attestation is required on the promissory note nor there is any
requirement of calling the witnesses to prove its execution.
Khawar Pervaiz Butt v. Muhammad Tahir Qasim Awan PLD 2017
Lah. 45; Aziz Ahmad v. Akbar Shamsher PLD 2016 Laho. 502 and Ali
Muhammad Shah v. Ijaz Hussain 2007 CLD 1084 ref.
Sheikh Muhammad Shakeel v. Sheikh Hafiz Muhammad Aslam 2014
SCMR 1562 rel.
(b) Negotiable Instruments Act (XXVI of 1881)---
----S.118---Presumptions as to negotiable instruments---Scope---Section
118 of the Negotiable Instruments Act, 1881, clearly raises the
presumption that negotiable instruments, when made or drawn, are
for consideration---Section 118, starts with "until contrary is proved",
which indicates that once a negotiable instrument is successfully
brought on record and its execution is proved, presumption as to valid
consideration arises in favour of the instrument and it remains
attached to the instrument until contrary is proved by the one who is
disputing the consideration---In view of the above presumption and in
the absence of rebuttal of the presumption, it is quite unnecessary to
bring on record or to prove an independent document to establish
consideration---There is no necessity in law that this instrument must
be backed up by separate receipt.
Manyam Janakalakshmi v. Manyam Madhava Rao and others AIR
1973 Andhra Pradesh 103 and Haji Karim and another v. Zikar
Abdullah 1973 SCMR 100 rel.
(c) Negotiable Instruments Act (XXVI of 1881)---
----S.118---Presumptions as to negotiable instruments---Scope---
Consideration is to be presumed until the Court believes that
consideration does not exist or considers its non-existence is so
probable that a prudent man ought, under the circumstances of the
particular case, to act upon supposition that consideration does not
exist.
Heerachand v. Jeevraja and another AIR 1959 Rajasthan 1 (V-46 C 1)
rel.
Hafiz Muhammad Asghar Bhatti and Muhammad Ahmad Balouch
for Petitioner.
Mirza Muhammad Nadeem Asif for Respondent.
Date of hearing: 21st June, 2022.
JUDGMENT
SULTAN TANVIR AHMAD, J.----Present revision petition, filed under
section 115 of the Code of the Civil Procedure, 1908 (the 'Code'), is
directed against the judgment and decree dated 09.11.2021 passed by
learned Additional District Judge, Minchinabad, whereby, the appeal
against the judgment and decree dated 20.03.2021 passed by learned
Civil Judge First Class, Minchinabad, has been dismissed.
2. The facts, necessary for the disposal of the present petition, are
that on 03.01.2013 the respondent filed suit for recovery of Rs.600,000/-
(the 'suit') on the basis of promissory note dated 14.06.2010 (the
'promissory note'). Per contents of the suit the petitioner obtained loan
of Rs.500,000/- from the respondent with the promise to return the
same by 21.01.2011 and in case of failure to return the same before the
cutoff date, petitioner also undertook to pay an additional amount of
Rs.100,000/-.
3. The suit was contested by the petitioner by filing written
statement and out of divergent pleadings of the parties, the following
issues were framed: -
 1. Whether the plaintiff is entitled to receive an amount of
Rs.600,000/- from the defendant on the basis of pro-note as
prayed for? OPP
2. Whether the plaintiff has no cause of action or locus-standi? OPD
3. Whether the suit of the plaintiff is liable to be dismissed Under
Order VII, Rule 11, C.P.C.? OPD
4. Whether the plaintiff has not issued any notice to the defendant
in accordance with law? OPD
5. Whether neither the plaintiff has affixed tickets on receipt/pro-
note in accordance with law nor the tickets are crossed? OPD
6. Whether the plaintiff has filed this false and frivolous suit just to
vex and harass the defendant, therefore, the defendant is
entitled to receive special cost in sum of Rs.20,000/- under
section 35-A, C.P.C., form the plaintiff? OPD
7. Relief."
4. Both the parties led their respective evidence. Plaintiff produced
Nazeer Ahmad stamp vendor as PW-1, Muhammad Jamil Naseer
Buttar advocate as PW-2, Muhammad Deen as PW-3, Muhammad Amin
as PW-4, Muhammad Ashraf, one of the marginal witness, as PW-5 and
plaintiff himself appeared as PW-6. The question as to the genuineness
of the thumb impressions on the promissory note was referred to
Punjab Forensic Science Agency and Muhammad Akbar Ali fingerprint
expert was examined as PW-7. From the respondent side, the
promissory note was brought on record as Exh. P-1, receipt dated
14.06.2010 is on record as Exh. P-2 and the affidavit dated 14.06.2010
has been brought on record as Exh. P3. The report given by fingerprint
expert is available on record as Exh.P-4 and Exh.P-5.
5. On the other hand, petitioner appeared as DW-1 and apart from
the sole oral statement of the petitioner nothing has been brought on
record to prove the version taken in the written statement.
6. On 20.03.2021 the learned trial Court gave issue-wise finding and
decreed the suit to the extent of Rs.500,000/- with costs of the suit
whereas, the claim of Rs.100,000/- has been dismissed in the following
manners: -
"In the light of decision on issues supra particularly, under issue No.
01, suit of the plaintiff for recovery of Rs.5,00,000/- against the
defendant is hereby decreed with costs of suit. Decree sheet be
drawn. File be consigned to records after its due compilation
and completion."
 7. The above said judgment and decree was assailed by the
petitioner through civil appeal No.51/2021 dated 23.10.2021. The
learned Appellate Court dismissed the appeal vide judgment and
decree dated 09.11.2021. Aggrieved from the same, the present
revision has been filed.
8. Messrs Hafiz Muhammad Asghar Bhatti and Muhammad Ahmad
Balouch, the learned counsel for the revision petitioner has submitted
that the promissory note was attested by two marginal witnesses,
fulfilling the requirement of Article 17 of Qanun-e-Shahadat Order
1984 (the "Q.S.O., 1984') but respondent merely produced one marginal
witness namely Muhammad Ashraf (PW-5) however, he has failed to
produce Allah Bakhsh son of Sher Muhammad Watoo which is in
violation of Article 79 of the Q.S.O., 1984, therefore, promissory note
could not be proved. He has further contended that the receipt dated
14.06.2010 / Exh.P-2 (the 'receipt') was necessary to be proved to show
the consideration of promissory note as per law settled in case titled
"Gulzar Mehmood Khan v. Abdul Waheed" (2016 CLC 848) and as one
of the marginal witnesses was never produced, therefore, the learned
two Courts below fell to an error while granting judgment and decree
on the basis of promissory note despite failure to prove the
consideration by the respondent. Learned counsel has added that
affidavit dated 14.06.2010 / Ex.P-3 (the 'affidavit') does not fulfill the
requirement of Article 17 of the Q.S.O., 1984 hence, it is wrongly relied
upon; that denial of execution of the promissory note and thumb
impressions by the petitioner, made it incumbent upon the respondent
to prove execution; that the learned two Courts below wrongly relied
upon the expert evidence which is the weakest kind of evidence and
the same cannot be given any importance, in the specific
circumstances of the case.
9. Conversely, Mirza Muhammad Nadeem Asif, learned counsel for
the respondent has vehemently opposed the present revision petition
and he has contended that the sole purpose of this petition is to delay
the recovery; that the marginal witnesses are not required to be
produced, in view of the exception given in Articles 17 and 79 of the
Q.S.O., 1984; that the Negotiable Instruments Act, 1881 (the 'N.I.A.,
1881') is a special law and the promissory note is not required to be
witnessed or proved by producing the said witnesses; that failure to
prove the receipt is not fatal for the case as consideration for
negotiable instruments are presumed as per section 118 of N.I.A., 1881.
It is further submitted by the learned counsel that petitioner has even
failed to rebut the presumption contained in section 118(a) of the
N.I.A., 1881, therefore, the learned Courts below have rightly decreed
the suit.
 10. I have heard the arguments of the learned counsel for the
parties and perused the record with their able assistance.
11. It is appropriate to first address the question raised by the
petitioner that failure to produce second witness of the promissory
note is fatal for the case. Hafiz Muhammad Asghar Bhatti, the learned
counsel has relied upon Article 17 and 79 of the Q.S.O., 1984 and he
has argued that it was necessary for the respondent to produce two
man or one man and two women to prove the promissory note. The
articles relied by the learned counsel are as under: -
17. Competence and number of witnesses.
(1) The competence of a person to testify, and the number of
witnesses required in any case shall be determined in
accordance with the injunctions of Islam as laid down in the
Holy Quran and Sunnah.
(2) Unless otherwise provided in any law relating to the
enforcement of Hudood or any other special law,
(a) In matter pertaining to financial or future obligations, if reduced
to writing, the instrument shall be attested by two men, or one
man and two women, so that one may remind the other, if
necessary, and evidence shall be led accordingly; and
(b) in all other matters, the Court may accept, or act on, the
testimony of one man or one woman or such other evidence as
the circumstances of the case may warrant.
79. Proof of execution of document required by law to be attested.
If a document is required by law to be attested, it shall not be used
as evidence until two attesting witnesses at least have been
called for the purpose of proving its execution, if there be two
attesting witnesses alive and subject to the process of the Court
and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in
proof of the execution of any document, not being a will, which
has been registered in accordance with the provisions of the
Registration Act, 1908 (XVI of 1908), unless its execution by the
person by whom it purports to have been executed is specifically
denied."
(Emphasis supplied)
12. Article 79 of Q.S.O., 1984 provides that a document cannot be
used as evidence until two witnesses at least are called to prove
execution, however, this requirement applies only if that particular
document is required by law to be attested. Article 17(2) specifies that
such requirement of attestation does not apply when contrary is
provided in any special law. Section 4 of the N.I.A., 1881 provides that
promissory note, which is an unconditional undertaking, is only
required to be signed by maker. It reads as follows: -
"4. "Promissory note. A "promissory note" is an instrument in
writing (not being a bank-note or a currency-note) containing an
unconditional undertaking, signed by the maker, to pay 2[on
demand or at a fixed or determinable future time] a certain sum
of money only to, or to the order of, a certain person, or to the
bearer of the instrument."
(Emphasis added)
13. The N.I.A., 1881, which is a special law, does not require
attestation by witnesses or provides for any bearing of attestation or
non-attestation on the instrument. The combined reading of the above
articles of Q.S.O., 1984 and N.I.A., 1881 makes it amply clear that
neither any attestation is required on the promissory note nor there is
any requirement of calling the witnesses to prove its execution. The
argument of Mr. Muhammad Asghar Bhatti, learned counsel for the
petitioner that the second marginal witness of the promissory note
was necessary to be produced by the respondent, therefore, has no
force. Reference in this regard can be made to cases titled "Sheikh
Muhammad Shakeel v. Sheikh Hafiz Muhammad Aslam" (2014 SCMR
1562), "Khawar Pervaiz Butt v. Muhammad Tahir Qasim Awan" (PLD
2017 Lahore 45), "Aziz Ahmad v. Akbar Shamsher" (PLD 2016 Lahore
502) and "Ali Muhammad Shah v. Ijaz Hussain" (2007 CLD 1084
Lahore). In Sheikh Muhammad Shakeel case (Supra) the Honourable
Supreme Court of Pakistan has already observed as follows: -
"9. We have heard the learned Counsel for the parties and have
perused the record. The appellant filed a suit in terms of Order
XXXVII, Rule 2, C.P.C. on the basis of a Promissory Note executed
by the respondent on 25-5-2001. The learned High Court has held
that the Promissory Note was not attested in terms of Article
17(2)(a) of the Order, therefore, it was not a valid instrument.
This finding of the learned High Court is contrary to the
language of section 4 of the Act, which defines a Negotiable
Instrument. In terms of section 4 of the Negotiable Instruments
Act, a Promissory Note is required to contain the following
ingredients:--
(i) An unconditional undertaking to pay,
(ii) the sum should be the sum of money and should be certain,
 (iii) the payment should be to or to the order of a person who is
certain, or to the bearer, of the instrument,
(iv) and the maker should sign it.
10. If an instrument fulfills the above four conditions it will be
termed as Promissory Note within the meaning of section 4 of
the Act. The requirement of attestation of a document as
contained under Article 17(2)(a) of the Order is contrary to the
definition given by section 4 of the Act. Therefore, we are of the
considered view that the Promissory Note Exh.P.2 produced by
the appellant in evidence contains all the ingredients of a valid
Promissory Note as defined in section 4 of the Act."
(Emphasis supplied)
14. The second argument of Mr. Muhammad Asghar Bhatti, learned
counsel of the petitioner is regarding proof of consideration of the
promissory note. In this regard Mr. Bhatti has relied upon non-
attestation of the affidavit (Exh. P-3) by any witness and failure to
produce Allah Bakhsh, the purported independent marginal witness of
the receipt (Exh. P-2), before the learned trial Court for examination.
He has submitted that the petitioner has failed to prove consideration
of the promissory note. At this juncture, it will be beneficial to
reproduce the relevant part of section 118 of N.I.A., 1881:-
"118. Presumptions as to negotiable instruments. Until the contrary
is proved, the following presumptions shall be made:
(a) of consideration: that every negotiable instrument was made or
drawn for consideration, and that every such instrument, when
it has been accepted, indorsed, negotiated or transferred, was
accepted, indorsed, negotiated or transferred for consideration.
(b) xxxx
(c) xxxx
(d) xxxx
(e) xxxx
(f ) xxxx
(g) That holder is a holder in due course. that the holder of a
negotiable instrument is a holder in due course: provided that,
where the instrument has been obtained from its lawful owner,
or from any person in lawful custody thereof, by means of an
offence or fraud, or has been obtained from the maker or
acceptor thereof by means of an offence or fraud, or for
 unlawful consideration, the burden of proving that the holder is
a holder in due course lies upon him."
(Emphasis supplied)
15. The reproduced provision clearly raises the presumption that
negotiable instruments, when made or drawn, are for consideration.
Section 118 above, starts with "until contrary is proved", which
indicates that once a negotiable instrument is successfully brought on
record and its execution is proved, presumption as to valid
consideration arises in favour of the instrument and it remains
attached to the instrument until contrary is proved by the one who is
disputing the consideration. In view of the above presumption and in
the absence of rebuttal of the presumption, it is quite unnecessary to
bring on record or to prove an independent document to establish
consideration. There is no necessity in law that this instrument must
be backed up by separate receipt. In "Manyam Janakalakshmi v.
Manyam Madhava Rao and others" (AIR 1973 Andhra Pradesh 103),
even having recital of consideration in promissory note is held to be
unnecessary. The relevant part of the said judgment is as follow:-
"16. A 'promissory note' is, therefore an unconditional undertaking
and a 'bill of exchange' is an unconditional order to pay a
certain sum of money. The law required that both should be
signed by the maker. But the law does not require that a
negotiable instrument should recite the consideration for which
it is made or drawn. The law does not also require the person
suing on the instrument to allege the consideration for which it
was made or drawn. Irrespective of any recital in the instrument
or any allegation in the plaint regarding consideration. the law
presumes that the instrument was made or drawn for
consideration. The presumption is that there was consideration
and not that there was any particular consideration, that which
might be recited in the instrument or that which might be
alleged in the plaint. The presumption arises as soon as the
execution of the instrument is proved and the presumption
continues until 'the contrary is proved', that is, until it is proved
that there was no consideration. It must be proved that there
was no consideration at all for the instrument. Mere proof that
the particular consideration recited or alleged did not exist may
not suffice, though such proof must naturally be a circumstance
to be considered in deciding whether there was no consideration
at all. Therefore, a plaintiff who, quite unnecessarily, adduces
evidence to prove a certain consideration but is unable to prove
that consideration, need not necessarily lose his action for that
reason."
 (Emphasis added)
16. The Honourable Supreme Court of Pakistan in case titled "Haji
Karim and another v. Zikar Abdullah" (1973 SCMR 100) has already
observed that the initial presumption that a negotiable instrument is
made, drawn, accepted or endorsed for consideration, although is
rebuttable presumption, yet the onus is on the person denying
consideration to prove the same.
17. Having said that burden to rebut presumption lies upon the
party denying the consideration, the questions arise that how this
presumption can be rebutted? The Honourable Supreme Court of
Pakistan in case titled "Rab Nawaz Khan v. Javed Khan Swati" (2021
CLD 1261) answered the question as to how the presumption is
rebutted, in the following words: -
"Although the presumption stated above, that every negotiable
instruments is made/drawn for consideration, is rebuttable, it is
trite law that the burden to rebut this presumption lies upon the
party arguing that the negotiable instrument has not been
made/drawn for consideration. Reference is made to the case of
Haji Karim v. Zikar Abdullah (1973 SCMR 100 at page 101).
However, this raises the question: how can this presumption be
rebutted? The answer has been provided by the Indian Supreme
Court in the case of Bharat Barrel and Drum Manufacturing
Company v. Amin Chand Payrelal ([1999] 1 SCR 704).
"13. ...The defendant can prove the nonexistence of consideration by
raising a probable defence... The burden upon the defendant of
proving the non-existence of the consideration can be either
direct or by bringing on record the preponderance of
probabilities by reference to the circumstances upon which he
relics... The bare denial of the passing of the consideration
apparently does not appear to be any defence. Something which
is probable has to be brought on record for getting the benefit of
shifting the onus of proving to the plaintiff. To disprove the
presumption the defendant has to bring on record such facts
and circumstances, upon consideration of which the court may
either believe that the consideration did not exist or its non-
existence was so probable that a prudent man would. under the
circumstances of the case shall act upon the plea that it did not
exist."
(Emphasis supplied)
8. It may be noticed from the above cited passage that the bare
denial of a party that a negotiable instrument has been
made/drawn for consideration does not rebut the presumption
 in section 118(a) of the Act. Nevertheless, in the present case,
this is precisely the respondent's defence; a bare denial."
(Underlining is added)
18. In "Heerachand v. Jeevraja and another" (AIR 1959 Rajasthan 1
(V-46 C 1) it is decided that consideration is to be presumed until the
Court believes that consideration does not exist or considers its non-
existence is so probable that a prudent man ought, under the
circumstances of the particular case, to act upon supposition that
consideration does not exist. The following extract of above judgment
is very relevant: -
"(19) Applying this definition to the principle behind the
presumption in S. 118(a) the principle comes to this. The Court
shall presume a negotiable instrument to be for consideration
unless and until after considering the matters before it, it either
believes that consideration does not exist or considers the non-
existence of the consideration so probable that a prudent man
ought, under the circumstances of the particular case, to act
upon the supposition that the consideration does not exist. I
would, therefore, say that the principle as explained by me
above behind S. 118(a) was in force in the former State of
Marwar even when the Act was not in force before 1949."
(Emphasis supplied)
19. Reverting to the facts of the present case, initially the petitioner
denied the liability by stating that promissory note and the receipt as
well as the affidavit are prepared by the respondent in collusion with
the marginal witnesses of the promissory note. In response to
paragraph 2 of the plaint, where the promissory note is alleged, the
following stance is adopted by the petitioner: -

20. However, when it was realized that one of the marginal

witnesses is not produced, the petitioner has opted to take the position
that claim should be unsuccessful for failure to produce second
marginal witness. During the cross-examination of the petitioner,
when he appeared as DW-1, himself agreed to have comparison of his
thumb impressions with those on the promissory note. The learned
trial Court obtained expert opinion from Punjab Forensic Science
Agency. The conclusion of the expert went totally against the interest
of petitioner. The expert was examined as PW-7 and the petitioner
could not extract anything adverse therefrom despite lengthy cross-
examination. The learned counsel also raised challenge to expert
evidence and while relying upon case titled "Anwar Ahmad v. Mst.
Nafis Bano through Legal Heirs" (2005 SCMR 152) he has contended
that expert evidence is a weak kind of evidence hence, cannot to be
relied upon, however, it is observed that the learned Courts below
have used the expert evidence merely as supportive material to
overwhelming evidence already produced by the respondent to prove
his stance.
21. The learned counsel of the petitioner has also taken support of
few minor discrepancies and contradictions in evidence of six
witnesses produced by the respondent-side, which is not sufficient, in
the present case, to rebut the presumption. The petitioner has
completely failed to raise any probable defense or to show by
producing any convincing evidence that the promissory note lacks
consideration, hence he has remained unsuccessful to rebut the
presumption arising under section 118(a) of N.I.A., 1881.
22. No case requiring interference, under section 115 of the Code, is
made out. Consequently, this revision petition is dismissed. No order
as to costs.
SA/A-14/L Petition dismissed.
;