G VENKATAREDDI Vs. P NAGIREDDI

JUDGEMENT

(1.) In this petn. the point raised is as to whether the learned Dist. Munsif was correct in throwing the burden of proof on the deft. when he framed the issue in the following manner :

(2.) The learned Dist. Munsif had reld. upon the decisions reported in 'Balkisandas v. Rambakas', (AIR (17) 1930 Nag 187) & 'Premraj v. Nathmal', (I L R (1936) Nag 142). There it has been held that a mere admission that the G. Venkatareddi vs. P. Nagireddi (08.01.1951 -MADHC) Page 2 of 2 consideration was not the one recited in the negotiable instrument would not shift the burden of the pltf. when the deft. denies consideration. These two decisions are of single Judges & so far as this Ct. is concerned, as laid down by the decision in 'Palaniappa v. Rajgopal', (1928 MWN 425), the rule has been that when the pltf. contends that the consideration is different from the one that is recited in the negotiable instrument the burden of proving want of consideration does not rest with the deft. but proof of consideration shifts on to the pltf. In the present case the recital in the promissory note is to the effect that cash consideration was paid. But in the plaint the pltf. has pleaded that the consideration was some lease amount that was due from the deft. The pltf. has practically shifted the ground, & he is not relying upon the recital in the promissory note for the nature or the quantum of consideration . In such cases I feel that the decision in 'Palaniappa v. Rajagopala', 1928 M W N 425 should prevail; otherwise it will cause serious injustice to the deft. if he is called upon to open the case & prove want of consideration.

(3.) Mr. Rangaswami Aiyangar appearing for the resp. has not been able to place before me any decision which is contra to the one reld. upon by the learned counsel for the petnr. His main point seems to be that since the deft. has applied to the Ct. nearly seven months after the issue had been framed, there is no equity in his favour in having come to this Ct. for revn. of the order refusing to recast the issue. I should say I am not very much impressed with this argument.