HARIBHAGVANDAS PARASRAM AND CO Vs. A DTHAKER

JUDGEMENT

(1.) THIS revision petition is directed against an order made by the Additional First Munsiff, Bangalore, allowing an application made by the defendant for the amendment of issues Nos. 3 and 4. The suit was one on a pronote. According to the recitals in the suit pronote, cash consideration had been paid. But in the plaint, it had been pleaded that the pronote had been executed for the money due from the defendant. The defendant admitted in his written statement, the execution of the suit pronote; he pleaded that it had been executed by him under certain unusual circumstances and that it was not supported by consideration. Then, the plaintiff stated in his reply statement that the defendant who had been an employee under the plaintiff had collected certain amounts due to the plaintiff and that the defendant having utilised the same for himself, executed the suit pronote for the said moneys. Amongst other contentions, the defendant had pleaded in his written statement that he had not collected a sum of Rs. 1399.50 nP. from Amba Book Binding Works and a sum of Rs. 324-50 nP. from the Jupiter Press. According to the plaintiff, these amounts also had been collected by the defendant and had been utilised by the defendant. According to issues 3 and 4 as originally framed, the burden had been thrown on the defendant to establish that these amounts had not been collected by the defendant from the Amba Book Binding Works and the Jupiter Press and that, therefore, the pronote was not supported by consideration to that extent. Consequent on the application for amendment filed by the defendant, the lower Court modified the 4th issue throwing the burden of proof on the plaintiff and thereby requiring the plaintiff to prove that the defendant had collected these sums from the Amba Book Binding Works and the Jupiter Press. Aggrieved by the said order passed by the lower Court, the plaintiff has preferred the present revision petition.

(2.) IN amending issue No. 4 and throwing the burden of proof on the plaintiff, the learned Munsiff seems to have been influenced by the fact that the allegations in the plaint in regard to the nature of the consideration differed from the relevant recitals in the suit pronote. The short, but important question which arises for consideration in this revision petition is whether in the face of the statutory presumption arising under Section 118(a) of the Negotiable INstruments Act, the burden of proving the consideration for a pronote the execution of which is admitted by the defendant, should be thrown on the plaintiff, merely because the consideration alleged in the plaintiff's pleading is different from the consideration as recited in the suit pronote. Section 118(a) of the Negotiable INstruments Act is as follows: