Meti Veerappa vs Gurnbasappa

Padmanabhiah, J.—This is a revision petition filed by the Petitioner-Plaintiff against the order of the learned Munsiff of Sagar, on I. A. No. 1 in O.S. No. 183 of 1954 refusing to delete the first issue trained in the suit.

The facts that have given rise to this petition are briefly as follows:

The Petitioner was the Plaintiff and the Respondent the Defendant in the lower Court. Plaintiff suit was based on a pronote executed by the Defendant for a sum of Rs. 800/-. Including interest and notice charges, Plaintiff''s claim came up to Hs. 1093/- odd. The Defendant admitted the execution of the suit pronote and contended that it win supposed by consideration only to the extent of Rs. 600/- that the said sum of Rs. 600/- plus the interest due thereon was subsequently paid to ''he Plaintiff on 6-2-52, that the debt has thus to discharged and that out of ill will the suit has been filed on the discharged document.

In his reply statement, the Plaintiff denied the all right is made in the written statement of the Defendant and contended that the suit pronote was in of debt due under another promote executed by the Defendant on 17-11-50, that the dished pleaded was false and that he was entitled to a decree as per plaint. In his rejoinder statement, the Defendant denied having executed the pronote on 17-11-1950 and affirmed the allegations made in his written statement.

On these'' pleadings, the learned Munsiff framed the unknowing issues:

(1) Whether the suit pronote was executed by the Defendant in discharge of another pronote datecLyf7-ll-50 as alleged by the Plaintiff?

(2) Whether the suit pronote is supported by sedation to the extent of Rs, 600/- only added by the Defendant?

(3) Whether the plea of discharge of Rs. 636/-in full satisfaction of the suit pronote is true?

(4) To what reliefs, If any, arc the plaintiff entitled?

The Plaintiff made an application under Order 14, Rule 5, CPC contending that the first issue was unnecessary in view of the admission of execution of the suit pronote by the Defendant and that the same should be deleted. This application was opposed by the Defendant and the learned Munsiff dismissed this implication and as against that order, the revision petition is filed.

It appears to me that the order of learned Munsiff has to be upheld. Reliance was placed on the side of the Petitioner on Section 118, Negotiable Instruments Act. That section provides that it newly: be presumed, until the contrary is proved, that a negotiable instrument was made for consideration. This proposition of law is not, and can not; lie, disputed.

A recital of receipt of consideration in a document is sufficient proof of consideration having passed under it. The presumption arising u/s 118, Negotiable Instruments Act is a rebut table one and die point for consideration is whether, the said presumption arising u/s 118 is rebutted in this case. I think it is.

The allegation in the plaint is that die Defendant executed the suit pronote for consideration. The Defendant admitted execution and denied consideration to the extent of Rs. 200/- It things had stopped there and if the Court had framed the first issue on the basis of those pleadings certainly there would have been such force in the contention of the Petitioner that the first issue was unnecessary and that the same should be deleted, because, on account of the admission of execution of the suit pronote by Defendant, the presumption arising u/s 118 Negotiable Instruments Act came into operation and the burden of proof of showing that the document was not supported by consideration would lie on the Defendant.

But, in this case, the pleadings did not stop merely there, In his reply statement the Plaintiff, in order to substantiate his contention that the pro-note was supported by consideration, averred that no castle was paid under die said document and that the same was executed in satisfaction of a debt that was due from the Defendant on a previous pronote executed by him on 17-11-50.

Thus it is seen that the Plaintiff shifted the ground regarding the mode or manner in which consideration passed for the suit pronote. This averment that: the Defendant had previously executed a pronote on 17-11-50 is denied by the Defendant in his- rejoinder. If the Defendant had admitted the execution of that pronote also, the contention of the Plaintiff that the first issue was unnecessary could have been upheld.

The admission on the part of the Plaintiff that no cash consideration passed under the suit document and the averment that it was executed in satisfaction of a debt due under another promote which fact has been denied by the Defendant, is of a sufficiently serious character which, in my opinion, has the effect of shifting the onus of proof with respect to the passing of consideration on to the Plaintiff. The circumstances referred to above are sufficient enough to rebut the presumption arising u/s 118, Negotiable Instruments'' Act and the Plaintiff should prove the passing of consideration to the extent disputed by the Defendant.

It was contended by the learned Counsel for the Petitioner that the first issue as framed will have the effect of disallowing the entire claim of the punitive if failed to prove the pronote of 17-11-50. I do not think such a contingency can happen. The Defendant has- clearly admitted receipt of consideration to the extent of Rs. 600/- under the suit pronote.

The Plaintiff will have to prove pronote of 17-11-50 for the purpose of showing that it is supported by consideration to the extent of Rs. 200/-also which has been disputed by the Defendant. Even if Plaintiff fails to prove the first issue, his out can fail only to the extent of Rs. 200/- and not to the extent of the whole claim. For these various reasons, I hold that the first issue as framed should scud.

In the result, the order of the learned Munsiff is confirmed, and this revision petition stands dismissed but without costs.