Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Mst. SUGHRAN BEGUM AND 11 OTHERS VS Respondent: Haji Mir QADIR BAKHSH AND 2 orHERs
Court Name: Balochistan High Court Judge(s): Ajmal Mian, Nazir Ahmed Bhatti Title: Mst. SUGHRAN BEGUM AND 11 OTHERS vs Haji Mir QADIR BAKHSH AND 2 orHERs Case No.: Regular Second Appeal No, 1 of 1979 Date of Judgment:1986-03-18 Reported As: PLD 1986 Quetta 232 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' AJMAL MIAN, ACTG. C. J.--This appeal is directed against the judgment and decree dated 9th April, 1979, passed by the learned Senior Civil Judge, Quetta in Civil Suit No, 93 of 1963. The brief facts leading to the filing of the above appeal are that late Ch. Imdad All son of Hussain Bux, Proprietor of M. Imdad Ali & Company Jinnah Road, Quetta now represented by his legal heirs the appellants filed the above suit for the recovery of Rs, 2,48,889 against the present three respondents in the Court of Senior Civil Judge, Quetta on the basis of the averment that on 24th July, 1961, the defendant No, 1 executed a pronote (hereinafter referred to as the pronote) at Quetta for Rs, 2,48,889 for full and complete consideration received in favour of defendant No, 2 in presence of the attesting witnesses. A photo copy of which was enclosed. It was also averred that defendant No, 2 later on transferred the pronote in his favour on 26th August, 1963, for full consideration received from the plaintiff and an endorsement to this effect was made on the back of the pronote. It was also averred that defendant No, 3, the husband of defendant No, 2 stood as surety to reimburse the plaintiff in the event of it being found that the liability of defendant No, 1 under the pronote did not subsist at the time of transfer of the said pronote in favour of the plaintiff. ' A copy of surety bond was also enclosed executed by defendant No, 3. It was further averred that defendant No, 3 was informed about the above indorsement through a registered letter dated 27th August, 1963, which was replied to by defendant No, 1 by his letter dated 31st August, 1963, averring therein, that the entire sum against the pronote had been paid over to defendant No, 2. It was also stated that after presenting the pronote through the Notary Public, suit was filed as the payment was not made.
---
## Page 2
' Defendant No, 1 in his written statement apart from taking technical objections, averred that he had never executed the pronote for Rs, 248,889 or for any other sum. It was also denied that the said defendant had borrowed the said amount or any other amount. It was asserted that there was no occasion for the execution of the document, nor there was any basis for the consideration mentioned in the document. The execution as well as the consideration were denied. ' Defendants Nos. 2 and 3 filed a joint written statement admitting the factum of execution of the pronote and the payment of consideration and also admitting the fact that defendant No, 2 had transferred the pro-note in favour of the plaintiff. It may be pertinent to point out that in para. 1 of the written statement it was stated that defendant No, 1 had executed the pronote in favour of the answering defendants and not defendant No, 2 alone. It was also prayed in the above written statement that a decree be passed against defendant No, 1. 2. It seems that there was controversy as to the sufficiency of stamp On the pronote, which was settled by a judgment, dated 12th May, 1969, given by a D. B. Of the erstwhile High Court of West Pakistan at Quetta in 1st R. F. A. No 50 of 1965. There was also controversy as to the framing of the issues which was settled by the erstwhile High Court of West Pakistan through a judgment dated 15th February, 1965, passed in Revision Application No, 7 of 1964. The following issues were finally framed:- Issues (1) Has the plaintiff contravened the provisions of Order VII, rule 14 and Order XI, rule 3, C. P. C.? (2) Is the pronote in dispute properly stamped? (3) Is the pronote in dispute executed and endorsed by defendant No, 1, or is it forged document? Note:-The burden to prove the first part of third issue will be on the plaintiff and burden to prove the second part of it will be or the defendant but evidence on both parts will be led simultaneously because the two parts being contradictory in the event of one of them being established the other parts will be automatically disproved. The evidence be produced first by the plaintiff. (4) Whether the pronote in dispute is without consideration? (5) If the pronote was endorsed by defendant No, 2 in favour of the plaintiff then was defendant No, 3 to be surety for defendant No, 2?" 3. It may be stated that defendants Nos. 2 and 3 remained ex parte after filing of the written statement, whereas, the plaintiff examined himself and ten witnesses, namely P. W. 1 Sultan Muhammad son of Haji Muhammad Umer (Exh. 14), a clerk from the Stamp Office P. W. 2 Agha Ghulam All son of Sardar Jafar Buledi (Exh. 14) defendant No, 3 and the husband of defendant No, 2, P. W. 3 Dr. Muhammad Khairuddin Saggu son of Haji Muhammad Shamsuddin Saggu (Exh. 16), the Notary Public through whom the pronote was presented and the protest was lodged, P. W. 4 Sardar Ali Beg son of Mirza Ali Akbar Beg (Exh. 17), a Petition-Writer who had allegedly prepared the draft of the pronote in the presence of the three defendants, P. W. 5 Muhammad Ali son of Allah Rakha (Exh. 18), another Petition-Writer who drafted the indorsement on the back of the pronote, P. W. 6 Muhammad Ishaque son of Yazdan Khan (Exh. 19), a businessman and politician friendly with the plaintiff and to whom defendant No, 1 allegedly complained as to why the plaintiff had purchased the pronote and through whom he had allegedly offered to pay Rs, 1 lac in case the plaintiff would return the pronote, P. W. 7 Mian Saifullah Khan son of Hafiz Muhammad Habibullah (Exh. 20) another politician who was allegedly approached by defendant No, 1 to arbitrate in the dispute regarding the pronote, P. W. 8 Aftab Ashraf son of Ashraf All (Exh. 21), an Officer in the Habib Bank Limited, Jinnah Road Branch, Quetta since 1969 and who had brought the specimen signature of defendant No, 1 from his Bank, where the defendant No, 1 had an account, P. W. 9 Cyril G. Bhan son of E. T. Bhan (Exh. 22), Handwriting Expert who had testified that the signature on the pronote is of that defendant No, 1. He has also produced his report and enlarged the photographs of disputed and admitted signature of defendant No, 1 and P. W. 10 Maraj Din son of Ghulam Nabi (Exh. 23), an
---
## Page 3
employee of the plaintiff who has deposed that the plaintiff ha4, paid a sum of Rs, 2,48,889, to defendant No, 2 in his presence. The plaintiff in his statement reiterated the contents of the plaint. ' Whereas, the defendant No, l's ocular evidence comprises of himself and 7 witnesses, namely. D. W. 1 Qazi Anwarul Haq son of Qazi Fazal Hague (Exh. 24) an Account Clerk in National and Grindlays Bank, Quetta, who stated that the plaintiff did not have any account during the last ten years with his Bank, D. W. 2 Zaka A. Malik (Exh. 25) Handwriting Expert who has produced his report and the enlarged photographs of disputed and admitted signatures. He has deposed that the signature on the pronote is not that of defendant No, 1 D. W. 3 Abdul Haq (Exh. 26), a representative of the Urban Co-operative Bank, Jinnah Road, Quetta who, has deposed that the plaintiff had three different personal accounts in the Bank on 31st August, 1963, and a sum of Rs, 3,81,078.42 was outstanding against him. In the cross-examination, he admitted that there was no debit in the three accounts of Ch. Imdad All in July, 1961, D. W. 4 Syed Ghulam Rasool son of Syed Muhammad Yasin (Exh. 27), the Chief Accountant of defendant No, 1 working with him for more than 15 years. He has stated that the signature on the pronote is not of defendant No, 1 and that the defendant No, 1 had never taken any loan from defendant No, 2, D. W. 5 Mir Khuda Dad Khan son of Mir Khaliq Dad Khan (Exh. 28), a relation of defendant No, 1, who was also working in his office. He has deposed that the pronote Exh. P/5 does not contain defendant No, l's signature, D. W. 6 Muhammad Afzal son of Sardar Khan (Exh. 29). He drafted the reply dated 31st August, 1963, (Exh. D/3) to the plaintiff's notice dated 27th August, 1963, about the transfer of the pro-note by defendant No, 1 in his favour by indorsement, D. W. 7 Sh. Abdul Haq son of Abdul Aziz (Exh. 30), another employee of defendant No, 1, who has deposed that the signature on the pronote is not of defendant No, 1. ' The defendant No, 1 in his deposition has denied the factum of having received Rs, 2,48,889 or any other sum from defendant No, 2. He also denied the signature on the pronote and has stated that the same was forged. ' The learned trial Court decreed the suit against defendants Nos. 2 and 3, but dismissed the suit against defendant No, 1, inter alia, on the ground that not a single attesting witness to the pronote was examined by the plaintiff and, therefore, the execution of the pronote has not been proved and consequently, the second part of the Issue No, 3 relating to forgery, reproduced hereinbelow, automatically stands proved. "Issue No, 3. ' Is the pronote in dispute executed and indorsed by defendant No, 1, or is it forged document ?" ' Under Issue No, 4, he held that neither the execution of the pronote, nor the payment of consideration was proved. The appellant being aggrieved by the above judgment/decree has filed the present appeal. 4. In support of the above appeal. Mr. Basharatullah, learned counsel for the appellant/plaintiff has urged as follows:- (i) That there was no requirement of law that in order to prove the execution of a pi onote an attesting witness is to be produced; (ii) That on the basis of the material on record, the execution of the pronote by defendant No, 1 stood established; (iii) That since the appellant succeeded in establishing that defendant No, 1 had executed the pronote, the burden of proof to prove that the pronote was without consideration was on defendant No, 1 in view of section 118 of the Negotiable Instruments Act, which he failed to discharge; (iv) That the learned trial Court should have passed a decree against defendant No, 1. ' On the other hand, Mr. Khalid Malik, learned counsel for the respondent No, 1/defendant No, 1 has urged as follows:-
---
## Page 4
(i)That since there were two attesting witnesses to the pronote and as it was averred in the plaint that the pronote was executed in presence of the said attesting witnesses, the plaintiff was obliged to produce both or any of them to prove the execution of the pronote and in the absence of their being examined, an adverse inference is to be drawn; (ii) That the plaintiff had not examined either any of the attesting witnesses to the pronote or defendant No, 2 in whose favour the pronote was executed and, therefore, the execution of the pro- note was not proved: (iii) That under section 118 of the Negotiable Instruments Act, the presumption in favour of the payee of a pronote is rebuttable, which in the instant case, stands rebutted by the evidence of the plaintiff himself, particularly of P. W. 2 Agha Ghulain All (defendant No, 3); and has rightly dismissed the suit against defendant No, I. 5. Adverting to the question, whether in terms of section 68 of the Evidence Act, it is mandatory to produce an attesting witnesses in order to prove the execution of a pronote, it may be pertinent to reproduce hereinbelow the above section, which reads as follows:- "Section 68.-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 one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness 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, unless its execution by the person by whom it purports to have been executed is specifically denied." A plain reading of the abovequoted section indicates that if a document by any law is required to be attested, the production of a attesting witness, if alive, is a mandatory requirement, if the execution of the same is denied. It is, therefore, evident that in order to press into service the above section, one has to ascertain whether under any law a particular document which is to be proved, was required to be attested. If there is no such requirement under any law for attestation of a docu ment by a witness, there is no legal requirement to produce an attestin witness in terms of above- quoted section 68 to prove the same. Mr. Khalid Malik, learned counsel for the respondent/defendant No, 1 I unable to cite any provision of any law, which requires that a pronot should be attested by one or more witnesses. In this view of the matter, the learned trial Court could not have concluded that because none o the attesting witnesses was produced by the plaintiff, the execution of the pronote by defendant No, 1 was not established. While dilating on the above aspect, it may be pertinent to take up the other contention o Mr. Khalid Malik which is a second limb of the same argument, namely that since the pronote was attested by two witnesses and as the plaintff failed to produce any one of them, an adverse inference should be drawn against the plaintiff. It may be observed that simpliciter non-production of an attesting witness will not warrant drawing of an adverse inference, if a plaintiff can otherwise prove the execution of a disputed document. 6. Adverting to the question of execution of the pronote, it may be observed that the plaintiff has not produced any witness before whom the pronote was executed by defendant No, 1 or the consideration was passed, nor defendant No, 2 in whose favour the pronote was executed, was examined. The testimony of P. W. 4 Sardar Ali Beg, a Petition-Writer at the most proves the preparation of a draft of the then proposed pronote, which was according to him handed over by him to defendant No, 3/P. W. 2 Ghulam Ali. Though P. W. 2 Ghulam Ali (defendant No, 3) and the husband of defendant No, 2 in whose favour the pronote was executed, in his examination-in-chief had stated that the pronote was executed in his presence and the consideration was passed in his
---
## Page 5
presence. However, in his cross-examination, which was conducted after five years and 18 days from the date of examination-in-chief he made the following statement:- "The transaction regarding the promissory note in suit was initiated by the plaintiff. It is possible that the currency notes might not have been passed by my wife to Mir Qadir Bakhsh and from the plaintiff to Fatimah Gul my wife. The signatures of Mir Qadir Bakhsh on the promissory note Exh. P/5 are not legible. The witnesses did not sign the promissory are not legible. The witnesses did not sign the promissory note Exh. P/5 in my presence. Barlass, Petition-Writer wrote the promissory note and I do not know to whom it was given. If the signatures of Haji Qadir Bakhsh are legible I can identify." ' It is, therefore, evident that there is no ocular evidence on record in support of execution of the pronote by defendant No, 1. However, Mr. Basharatullah, learned counsel for the appellant has, inter alia, relied upon the two documents, namely, the plaintiff's notice, dated 27th August, 1963 (Exh. P/6) addressed to defendant No, 1 intimating to him that by making payment of Rs, 2,48,889 to defendant No, 2, he had obtained indorsement on the pronote in his favour and a reply dated 31st August, 1963 (Exh. D/3) in which, defendant No, 1 had stated that the amount of the pronote was paid lump sum in respect of the land before Magistrate Ist Class and that he was not liable and that he had also attested a stamp paper about the above payment. Since the controversy as to the execution of the pronote mainly hinges on the above two documents, it may be advantageous to reproduce the same, which read as follows:- Dated 27-8-1963 {{URDU TEXT}} 7. Mr. Basharatullah, learned counsel for the appellant on the basis of the above reproduced reply has vehemently urged that the execution of the pronote by defendant No, 1 stands established, particularly in view of the fact that there is corroborative evidence in the form of scribe of the draft P. W. 4 Sardar Ali Beg and the statement of P. W. 6 Muhammad Ishaque through whom defendant No, 1 had allegedly offered to pay Rs, 1 lac for the return of the pronote and P. W. 7 Mian Saifullah Khan, to whom defendant No, 1 had allegedly approached for arbitration in the dispute coupled with the evidence of Cyril G. Bhan. Reliance has been placed on section 31 of the Evidence Act and the following cases:- (i) Eastern Federal Union Insurance Company Limited v. Bawany Industries Limited Karachi 1979 CLC 321, in which, one of us (Mr. Justice Ajmal Mian) while sitting at Sind High Court at Karachi after reviewing the case-law on the question of admission observed as follows:- "Page 335 (G)-In my view, the above rulings have no relevancy to the interested case as the insurance policies according to my finding referred to hereinabove were valid and, therefore, the defendants did dot admit their liability under a mistake of law or fact nor the instant case involves enforcement of an illegal contract on the basis of doctrine of estoppel. ' The defendant's witness was put in cross-examination the relevant documents to show that the defendants admitted their liability and therefore, the last case referred to hereinabove, namely, AIR 1946 Lah. 65 has no application to the instant case. (ii) Ahmed Khan v. Rasul Shah and others PLD 1975 SC 311. In the above case, the Honourable Supreme Court while dismissing an appeal referred to the question of admission and observed that admission of facts are only relevant and are not conclusive and, therefore, it can be shown to be wrong. It was also pointed out that Evidence Act expressly provides that admissions are not conclusive proof of the matter admitted and that any admission which is wrong in point of fact or is made in ignorance of legal right has no binding effect on the person making it. ' On the other hand Mr. Khalid Malik, learned counsel for the respondent No, 1 has urged that defendant No, l's reply Exh. D/3 does not contain an unconditional admission and, therefore, is not binding and is not conclusive. Both the learned counsel have referred to section 31 of the Evidence
---
## Page 6
Act, which provides that admissions are not conclusive C proof of the matters admitted, but they may operate as estoppels under the provisions hereinafter contained. 8. It was also contended by Mr. Khalid Malik, Advocate that since the copy of the pronote was not forwarded with Exh. P/6, there could not have been any admission of the execution of a document, which was not before defendant No, 1. He has also referred to the evidence of the handwriting expert produced by defendant No, 1, namely, D. W. 2 Zaka A. Malik and the testimony of the employees of defendant No, 1, namely, D. W. 4 Seyed Ghulam Rasool and D. W.-5 Mir Khuda Dad Khan to demonstrate that factually the pronote was not executed by defendant No, 1. ' Mr. Basharatullah, Advocate has also referred to sections 73 of the Evidence Act which empowers the Court to compare the disputed signature with the proved one in order to arrive at a conclusion. Reliance has also been placed on the case of Messrs Muhammad Yusuf Iqbal Ahmed v. Lvth Sind Labour Court, Karachi and another (1) in which, a learned Single Judge while hearing a constitutional petition against the order of a Labour Court referred to the opinion formed by the Junior Labour Court as to the genuineness of signature on a resignation after comparison of the disputed signature with the admitted one. 9. It will suffice to observe that under section 73 of the Evidence Act, a Court is competent to compare the disputed signature with the admitted signature in order to arrive at a conclusion, but at the same time, it 'is desirable to obtain the assistance of expert in this behalf. We D are inclined to hold that though there is no ocular direct evidence as to the execution of the pronote, but the above reproduced reply of defendant No, 1 Exh. D/3 coulped with the other evidence on record referred to hereinabove, establishes the execution of the pronote by defendant. No, 1. ' We may also observe that it was vehemently urged by Mr. Khalid Malik, learned counsel for the respondent No, 1 that the above reply was based upon a mistake of fact and, therefore, it cannot be considered as admission. In this regard, he has referred to the evidence of defendant No, 1 and D. W.-6 Muhammad Afzal scribe of the reply. However, we are of the view that as regards the factum that there was a pronote executed of a sum of Rs, 2,48,889 there is unqualified and unambiguous admission in the above reproduced reply, but there is no admission as to the receipt of consideration. On the contrary, it was stated in the said reply tha pronote was executed in receipt of a land transaction and the cash amount was paid in lump sum. We, therefore, hold that the finding of the learned E Trial Court that the execution of the pronote was not established, is contrary to the evidence on record and contrary to law. 10. This leads us to the question whether the payment of consideration has been proved for the execution of the pronote. There is a presumption in favour of consideration under section 118 (a) of the Negotiable Instru mints Act, which inter alia, provides that until contrary is proved, there shall be presumption that every Negotiable Instrument was made or thaw for consideration and that every such instrument when it has been accepted indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration. The above section provides a rebuttable. (1) PLD 1977 Kar. 711 presumption, which can be rebutted by a defendant. In this regard, reference may also be made to para-379 of the Halsbury's Laws of England Fourth Edition, Volum IV, which reads as follows:- "379. Presumption of consideration: ' It has been already stated that bills of exchange and promissory notes, unlike other forms of simple contract. Are presumed to stand upon the basis of a valuable consideration. ' Not only is this so in the case of the immediate parties to the bill or note, but it is so also in the case of those who become parties to it subsequently by indorsement, for every party whose signature appears on a bill is prima facie deemed to have become a party thereto for value, ' The effect of the presumption, therefore, is that it shifts the burden of proof from the "shoulders of the plaintiff who relies upon the instrument to those of the defendant who impugns it",
---
## Page 7
' The question, therefore, in issue is as to whether defendant No, 1 succeeded in rebutting the presumption. Mr. Basharatullah, learned counsel for the appellant has vehemently contended that it was incumbent upon the defendant No, 1 to have produced the evidence to show that there was factually any land transaction in respect of which, the pronote was given by the defendant No, 1 and further that factually the payment was made in respect of the amount of the pronote against the receipt before a 1st Class Magistrate as averred by the defendant No, 1 in his above reply Exh. D/3. ' On the other hand Mr. Khalid Malik, Advocate has vehemently urged that the plaintiff after having averred in the plaint that the pronote as executed on payment of consideration had taken burden upon himself to prove the factum of payment of consideration by defendant No, 2 to defendant No, 1. In furtherance of his above submission, he has also referred to the above-quoted statement of P. W. 2 Agha Ghulam Ali (defendant No, 3 and the husband of defendant No, 2), which according to him belies the factum of payment of consideration. Mr. Khalid Malik, Advocate in support of his above submission has referred to the following cases:- (i) Sved Hider Aabdi v. Syed Javed Aabdi NLR 1980 U C 353, in which, a learned Single Judge of the Lahore High Court sitting at Baghdad-ul-Jadid held that in a suit based on a negotiable instrument, defendant is competent to take alternate plea as to the execution and the payment of consideration. Ali Muhammad and 2 others v, Ghulain and another PLD 1983 Kar, 99. In the above case, a learned Single Judge of the Sind High Court while construing section 114 read with section 101 of the Evidence Act held that the presumption attached to a pronote can be rebutted by sufficient evidence. And upon such evidence produced, the burden is shifted on the plaintiff. (iii)…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.