RAM JASH GOSHAIN Vs. MARKANDE PATHAK

JUDGEMENT

(1.) This is an application in revision by the plaintiff whose suit for Rs. 229-11-0 on foot of a promissory note alleged to have been executed by the defendants was dismissed by the lower Court. The plaintiff's case as set out in his plaint is that ha advanced Rs. 200 in cash to the defendants on 13 January 1931, in lieu of which the defendants executed the promissory note in suit agreeing to pay the aforesaid sum with interest at the rate of 6 per cent per annum. The defence was a denial of the receipt of consideration. It was alleged that the plaintiff had filed a complaint in a criminal Court against the defendants and taking advantage of his position as a prosecutor ho obtained the promissory note in suit by the exercise of undue influence. It was emphasized at more than one place in the written statement that the promissory note was without consideration and as such not enforceable. The plaintiff gave his own evidence in support of his claim and stated that he withdrew his complaint as alleged by the defendants, but on that very day he advanced Rs. 200 in cash to the defendants. According to his evidence the two matters were wholly independent of each other. The learned Munsif disbelieved the plaintiffs story so far as the loan of the sum claimed is concerned. He has expressed an opinion to the effect that the promissory note was executed in consideration of the plaintiff withdrawing the complaint. The learned Munsif did not however consider it necessary to record a finding as to whether on that supposition the plaintiff was entitled to a decree.

(2.) It is argued by the learned advocate for the applicant that a promissory note executed by the defendants in consideration of the plaintiff withdrawing a compoundable offence is a valid instrument. If this had been the plaintiff's case the argument would have merited consideration. The plaintiff however persisted in his case that the promissory note was in respect of money advanced in cash. This story having been disbelieved and in my opinion rightly, the question is whether the plaintiff can succeed on the defendants admission. I have carefully considered the written statement and do not find that it contains any admission to the effect that the promissory note was executed by the defendants in consideration the plaintiff withdrawing the criminal case. On the contrary the defendants impeach the promissory note on the ground that the plaintiff extorted it from them in this view the defendants plea, namely, that no consideration passed to them under the promissory note cannot but prevail.

(3.) The learned advocate for the applicant referred me to 1922 Sri Ram V/s. Firm Sobha Ram Gopal Rai 1922 All. 213 and Ghanshiam Das Baijnath V/s. Mithan Lal Tandon 1930 All. 529. These were cases in which the defence was held to be barred by Section 92, Evidence Act. The defendants pleas in those cases were in violation of the provisions of Section 92. In none of those cases the plea was that there was no consideration for the promissory note there in suit. It cannot be denied that it is open to a defendant to plead that the promissory note executed by him was executed in certain circumstances and was without consideration. The onus of course lies on the defendant to establish that he received no consideration, and if he succeeds in displacing the apparent tenor of the promissory note as regards consideration and the plaintiff cannot fall back upon any other case, the suit must be dismissed. I am satisfied that the view taken by the lower Court is right. This revision is accordingly dismissed with costs.