M VENKATA RAGHAVALU CHETTY Vs. ANSABAPATHY CHETTI

JUDGEMENT

(1.) By these petitions we are asked to revise the judgments of Sir V.C. Desikachari, a Judge of the Presidency Court of Small Causes, Madras, decreeing the plaintiff s claim on a promissory note for Rs. 1,000 (Exhibit A) and of the Full Bench of that Court dismissing an application made to it by the petitioner for a new trial. The question is, accepting the findings of fact by the court of first instance, as we are bound to do, is there a proper case fat revision? The defendant admitted the execution of the note and pleaded want or failure of consideration under Section 118 of the Negotiable Instruments Act XXVI of 1881. The court is bound to presume, until the contrary is proved, that a pro-note was made with due consideration. It was incumbent on the defendant, therefore, to make out his plea. The learned Small Cause Court Judge has disbelieved the story set up by the defendant in support of his plea. Upon that finding the plaintiff was entitled to judgment, but after the evidence of the defendant was taken the plaintiff gave evidence to show how the consideration for the pro-note was made up. The learned judge has also disbelieved the plaintiff s account as to what happened and he thinks that the true consideration for the pro-note was something other than that spoken to by the plaintiff in his evidence The latter finding does not appear to be supported by evidence and may be discarded for the present purpose. It is contended that, both the parties having gone into evidence and the plaintiff s evidence as to what was the nature of the consideration being disbelieved, it must be taken that the defendant lias shewn that there was no consideration. To my mind there is no force in such argument. The plain effect of the learned judge s estimate of the evidence is that he is not satisfied that there was no consideration or there has been a failure of consideration for the pro-note, or in other words, defendant has failed to make out his plea. But it is suggested that we must treat the fact that the plaintiff in his evidence alleged a particular form of consideration as an admission that there was no other consideration, and the particular form of consideration spoken to by the plaintiff having been disbelieved, the presumption under Section 118 of the Negotiable Instruments Act was rebutted and the defendant was relieved from proving that there was no consideration. This sort of reasoning is, in ray opinion, open to two objections. In the first place, I am not aware of any authority and none has been referred to during argument which would justify us in extending the rule relating to admissions to such a far-fetched inference as that on which the argument is based, and the next objection is that the argument requires us to regard the events from a wrong point of view. Neither the pro-note nor the plaint states any particular form of consideration, and I fail to see how, when the defendant failed to prove want of consideration, the fact that the plaintiff, in order to rebut the defendant s evidence, gave an untrue account as to the form of consideration, can be taken as admission or proof of want of consideration.

(2.) At the close of the defendant s case the learned judge might at once have passed a decree in favour of the plaintiff, and it cannot possibly make any difference that the plaintiff afterwards deposed to a story which the judge was unable to believe. Of course, after hearing the plaintiff s evidence, it was open to the judge to say, on considering the evidence of both sides, that the falsity of the plaintiff s story made the defendant s version of what occurred more probable, but here the judge rejects the defendant s case as false. It was also argued that the property in the pro-note was not intended to pass to the plaintiff until the happening of certain events, but such a defence was never put forward in the Small Cause Court and the facts found by the learned judge do not go sufficiently fat to support such a plea.

(3.) I would, therefore, dismiss the petition with costs.