LAL GIRWAR LAL Vs. DAU DAYAL

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit far recovery of RS. 700 with interest and costs, stated to have been borrowed by the defendant from the plaintiff and to be payable on demand. The plaint asserted that: after taking the loan, the defendant made over two writings to the plaintiff for his satisfaction which are hereto annexed.

(2.) The plaintiff filed a document purporting to be a promissory note attested by witnesses and a receipt of the same date. The defendant denied that he had executed any promissory mote in favour of the plaintiff and pleaded that the document filed by the plaintiff had been obtained from him by practising fraud, and also denied the passing of any consideration. The plaintiff led evidence in the first instance and the defendant produced rebutting evidence. The lower appellate Court has disbelieved the plaintiff's evidence and has also considered that the defendant's witnesses are not worthy of belief. As the plaintiff failed to prove that the money had been lent to the defendant, the lower appellate Court has dismissed the suit.

(3.) The appeal was referred to a Division Bench because of an apparent conflict of opinion on the question whether where the plaintiff has led evidence in the first instance to prove the consideration for a promissory note and has failed to establish the passing of consideration, he can fall back on the initial presumption in his favour. On this point the latest ruling of this Court in L. Ram Nath V/s. Lala Ram Chandra Mal 1935 All. 154, is in favour of the plaintiff. In that case the execution of the promissory note having been admitted by the defendant and the passing of the consideration denied plaintiff could still avail himself of the presumption under Section 118(a), even though the evidence produced by both the parties had not been believed by the Courts. This view is in accord with the previous rulings of this Court in Muhammad Tahir V/s. Raghubir Dayal (1911) 11 I.C. 761, Jagmohan Misir V/s. Uma shanker 1914 All. 232 and Jgmohan Misir V/s. Mendhai Dube 1932 All. 164. The learned Counsel for the respondents however relies on Kishen Ballabh V/s. Ghure Mal 1915 All. 228, in which there are certain remarks which may be construed to amount to an expression of the view that where the plaintiff has chosen to open the case and lead evidence as to the passing of consideration and the Courts have disbelieved that evidence, the presumption arising in favour of a negotiable instrument with regard to the passing of consideration would not hold good. It is not clear whether the learned Single Judge meant to express that opinion clearly; if so, we would not be prepared to agree with that view. Possibly in that case the Courts were satisfied, on the (entire evidence that some consideration had passed. In Md. Shafi Ali Khan V/s. Mahome Moazzam Ali Khan 1923 All. 214. it was. laid down that in a case where consideration is denied and the plaintiff goes into the witness-box, and the result of his cross-examination is such that he fails to establish the point which he set out to make namely, that he gave the consideration, and the Court is satisfied that he did not give the consideration, the defendant can avail himself of that. We are not satisfied that it was meant to be laid down in that case that where the plaintiff merely fails to prove that consideration passed and the defendant also fails to prove that he did not give consideration., there is no presumption in favour of the plaintiff. Very probably in that case the Court had come to the conclusion that some consideration had passed because the learned Judge observed: and the Court is thus satisfied that he did not give the consideration which he alleges.