NISARALI Vs. SYED IQTIDARALI

JUDGEMENT

(1.) THE Appellant instituted a suit in the Court of the Sub -Judge of Bhopal for recovery of Rs.1,160 from the Respondent alleging that on 15th January 1949, the Defendant borrowed the amount from him and executed document in his favour agreeing to repay it by 21 at January 1949. The Plaintiff described the document as a bond. The Defendant contested the Plaintiff's claim on the grounds that he never borrowed any amount from the Plaintiff; that the document which he had executed in the Plaintiff's favour amounted to a promissory note or an acknowledgment; and that it not having been properly stamped was inadmissible in evidence. He also suggested that at the material time the Plaintiff was employed in the Forest Department of the Bhopal State and be obtained the promissory -note from the Defendant on the representation that some pasture land would be leased out to him and that the amount claimed being thus in the nature of a bribe was not recoverable.

(2.) THE trial Court found that the Defendant borrowed Rs.1,160 from the Plaintiff and executed a bond in his favour; that since the document was a bond, it was admissible in evidence on payment of requisite stamp duty and penalty by the Plaintiff; and that the Defendant had failed to repay the amount. The Plaintiff's suit was accordingly decreed. The Defendant then preferred an appeal in the Court of the District Judge of Bhopal. The learned District Judge took the view that the document was a promissory -note and as it did not bear any stamp at all it was inadmissible in evidence; and that the Plaintiff had failed to establish that he had advanced to the Defendant Rs.1,160. The Plaintiff's suit was, therefore, dismissed by the learned District Judge. Hence this second appeal by the Plaintiff. Heaving heard Learned Counsel for the parties, I have arrived at the conclusion that this appeal must bedismissed. The learned District Judge was no doubt in error in thinking that the document in question is a promissory -note. The document Ex. P -1 is in Urdu, and when translated into English it runs as follows -

(3.) LEARNED Counsel for the Appellant urged that as the burden of proving want of consideration was on the Defendant, who had admitted the execution of the document, and as the Defendant led no evidence to negative the presumption arising under Section 114, Evidence Act about passing of consideration, the Defendant must fail even though the Plaintiff's evidence about payment of consideration was not satisfactory. I do not agree. No doubt on the admission of execution of the bond by the Defendant a presumption under Section 114, Evidence Act about passing of consideration would arise. But this is a rebuttable presumption. The burden is no doubt on the Defendant to prove circumstanced rebutting the presumption. But if the evidence on record, no matter whether led by the Plaintiff or by the Defendant, itself rebuts the presumption, then the presumption cannot be allowed to stand merely because the evidence rebutting the presumption was led by the Plaintiff and not by the Defendant.