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. 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. Raghubir Dayal (1911) 11 I.C. 761, Jagmohan Misir v. Uma shanker 1914 All. 232 and Jgmohan Misir v. Mendhai Dube 1932 All. 164. The learned Counsel for the respondents however relies on Kishen Ballabh v. 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. 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.
4. The Court is certainly entitled to record a categorical finding on the question of the passing of consideration of the entire evidence produced by both the parties. The case of Shambhu dayal. v. Lallu Mal 1924 All. 256, may be distinguishable because there the plaintiff had gone back on the recital in the negotiable instrument and had admitted that at least part of the comsideration had not been, paid in cash. The learned Judges especially emphasised this fact and remarked:
As the case now stands the plaintiff himself has gone back on the recital in the promissory note to the effect that Rs. 8000 were paid over in cash.
5. As in the present case there is no such going back, we are not called upon to consider the bearing of this ruling on this case, although it may be pointed out that Section 118, Negotiable Instruments Apt, does not speak of any cash consideration. The case of Singar Kunwar v. Basdeo Prasad 1930 All. 568, has no application because there the presumption under Section 118, Negotiable Instruments Act, was applied, but it was held that that presumption had been rebutted by the evidence in the case.
6. It seems to us that under Order 18, Rule 3. Civil P.C. Where there are several issues, the burden of proving some of which lies on the plaintiff, he can 'at his option' either produce his evidence on those issues in the first instance or reserve it by way of answer to the evidence produced by the other party. The exercise of the first of these options does not in any way involve an admission on the part of the plaintiff that he is undertaking the burden of proving that issue, although that burden lies on the defendant. Section 118, Negotiable Instruments Act, is imperative and the Court is bound to draw the initial presumption that every negotiable instrument was made for consideration, when its execution is admitted. Similarly Section 102, Evidence Act, throws the burden of proving want of consideration on the defendant, for if no evidence was produced by either side and the execution of the document being admitted, the plaintiff's claim would be decreed. But where the Court has after a consideration of the entire, evidence recorded a clear finding one way or the other, then the finding is based not on a mere presumption, but on the evidence, and has to be accepted.
7. In the present case the main difficulty in the way of the plaintiff is that he was conscious of the fact that the ostensible promissory note which had been attested by witnesses either before or after the execution was a bond and not a promissory note, or that it had been tampered with. Again, the receipt was 'under stamped and could not be accepted without being impounded. In the face of these difficulties the plaintiff chose to bring a suit for the recovery of the amount advanced as a loan and admitted that the documents were handed over to Mm t 'after the taking of the loan.' Further more it is not at all clear that the defendant had clearly admitted the execution of the promissory note or the bond in question in the strict sense of the word. He had admitted 'his signature on the document, but liad qualified his admission by saying that the signature had been obtained by means of fraud. We therefore do not think that in this particular case the plaintiff should now be given a decree for the amount when the Court below has recorded a clear finding that he has failed to prove that money was lent in the 'defendant. He cannot be allowed to take advantage of the weakness in the defendant's evidence that the want of consideration had not beep satisfactorily established, when his suit is professedly not based on the bond.
8. The appeal is accordingly dismissed with costs.