MAHABIR SINGH Vs. ALIMOHAMMAD

JUDGEMENT

(1.) This is an application under Section 25, Provincial Small Cause Courts Act. The suit was instituted on a hand-note of which the defendant denied execution. The defendant at the same time denied that he had taken the loan described in the hand, note. Execution of the hand-note was proved by the evidence of the plaintiff's witness Pulin Chandra Haldar which the Munsif believed. This witness had also stated that when the hand-note was executed, the defendant told him that he had received the money. The plaintiff had stated that he lent Rs. 91 to the defendant who then executed the hand-note; but the learned Small Cause Court Judge read the evidence of Pulin Chandra Haldar as inconsistent with that of the plaintiff because this witness had said that the defendant had admitted to him that he had received the money, while the plaintiff had not specifically stated that the advance was made before the hand-note was executed. The learned Small Cause Court Judge remarked that the plaintiff's story of the passing of consideration had received no corroboration from the evidence and he therefore dismissed the suit.

(2.) Mr. K. K. Banarji, on behalf of the plaintiff, points out that the Small Cause Court Judge omitted to take notice of the provisions of Section 118, Negotiable Instruments Act. When the evidence of Pulin Chandra Haldar regarding the execution of the hand-note was accepted, it had been proved in the legal sense that the hand, note had been executed and that the consideration had passed and no corroboration was needed of any evidence on that point which might have been given by the plain, tiff. Mr. Fakhruddin on behalf of the defendant points out that the learned Small Cause Court Judge may have declined to accept the evidence of Pulin Chandra Haldar regarding the admission of the passing of consideration, and that he may have positively believed the evidence of the defendant on this point; but I think that it is hardly possible to take this view.

(3.) The learned Small Cause Court Judge was under a misapprehension in supposing that there was any inconsistency between the evidence of the plaintiff and that of Pulin Chandra Haldar; and the more reasonable view would be that the defendant's evidence regarding execution and passing of consideration which is wholly without corroboration was rebutted by the proof of execution made by Pulin Chandra Haldar. That being so, the provisions of Section 118 of the Act apply, with nothing remaining to rebut the presumption; and the further evidence of the plaintiff and of Pulin Chandra Haldar regarding the passing of consideration became superfluous. It must be held that in this case the execution of the hand- note and the passing of consideration had been proved.