K.D. Sharma, J.
1. This is a civil revision Under Section 115 of the Civil Procedure Code filed by Moti Lal and his sons, owners of M/s. Moti Lal Mangal Chand, against the Judgment and decree of the Civil Judge, Pali, dated 29th January, 1974, confirming the judgment and decree passed by the Munsiff, Sojat, in Civil Original Suit No. 165 of 1968 Moti Lal and Ors. v. Shri Krishna.
2. The relevant facts giving rise to this revision-petition may be briefly stated as follows : Moti Lal & his sons, owners of firm M/s. Moti Lal Mangat Chand, had money dealings with Shri Krishna, defendant, who, after going through the accounts, executed a pro note and a receipt for the balance of Rs. 300/-, on 21st July, 1975 in favour of plaintiff and agreed to pay interest thereupon at the rate of 12% per annum. After execution of the pro-note the defendant could not make any payment either towards the principal or towards the interest. Hence, the plaintiffs filed a suit for recovery of the principal sum of Rs. 300/-, plus Rs. 90/-, as interest calculated at rate against Amba Lal legal representative of Shri Krishna, deceased.
3. In response to the summon issued in the suit, Amba Lal appeared in the court and filed a written statement wherein he denied having any knowledge about the money dealings of Shri Krishna with the plaintiffs and about execution of any pro-note or receipt for Rs. 300/-, by him during his life time on 21st July, 1965. It was further stated in the written statement that Amba Lal gave the plaintiffs a notice that if any amount was due from Shri Krishna, deceased, the former was prepared to pay it off after going throng the accounts. The plaintiffs, however, did not give any reply to Amba Lal's notice. It was further alleged that the plaintiffs entered into a contract for sale of a house with Shri Krishna, deceased, and received part payment of the price of the house The rest of the amount of Rs. 2500/-, was payable to the plaintiffs at the time of registration of the deed of sale. AmbaLal many a time requested the plaintiffs to accept the remaining sum and to get the sale deed registered in his favour, but neither they rendered any account, nor did they get the sale deed registered in his favour after the death of Shri Krishna. Upon pleadings of the parties, the learned Munsiff framed the following issues:
1. Whether the defendant's father Shri Krishna deceased executed a pro note and a receipt for Rs. 300/-, on 21st July, 1965 in favour of the plaintiffs and agreed to pay interest thereupon at the rate of 12% per annum?
2. Whether the plaintiffs received any interest on this amount?
After framing the aforesaid issued the learned Munsiff proceeded to try the suit, recorded the evidence of Moti Lal, plaintiff, and Amba Lal, defendant, and dismissed the suit of plaintiffs with coin. Aggrieved by the judgment and decree of the learned Munsiff, the plaintiffs preferred an appeal in the court of he District Judge Pali, where from the appeal was transferred for disposal according to law to the court of the Civil Judge, Sojat. The learned Civil Judge, after hearing the learned Counsel for the parties, recast issue No. 1 and remitted the suit co the trial court for taking evidence of the parties on the issue which was recast and for recording its finding thereon and to send the case back to him on or before 12th May, 1970 The issue, which was recast, reads as follows:
Whether on 21st July, 1965, Shri Krishna deceased father of the defendant, after going through the accounts, found a sum of Rs. 300/-, outstanding against him and executed a pro-note for that balance in favour of the plaintiff and promised to pay that sum together with interest the rate of 12% per annum?
After the case was remanded, Moti Lal examined himself on the issue which was reframed by the learned Civil Judge and did not produce any other evidence. The defendant also did not produce any evidence on that issue. The learned Munsiff recorded his finding on 20th Jan., 1973 in favour of the plaintiffs and sent it back along with the record to the appellate court. The learned Civil Judge, there upon, dismissed the appeal filed by the appellant and confirmed the Judgment and decree of the learned Munsiff, Sojat, dated 18th November, 1969. As against this judgment and decree of the appellate court, the plaintiffs have come-up in revision to this Court.
4. I have carefully gone through the record and heard Mr. Kewal Chand, learned Counsel for the petitioners and Mr. S.L. Soni, appearing on behalf of the non-petitioner A preliminary objection has been raised by the learned Counsel for the non-petitioner that the revision-petition is barred by limitation, as it had been filed after 62 days of the expiry of the period prescribed for filing revision petition in the High Court. The preliminary objection does not appear to be well-founded. The judgment and decree against which the revision-petition has been filed by the plaintiffs are dated 29th January, 1974. The petitioner applied for copies of the judgment and decree on 6th February, 1974 and the copies thereof were delivered to him on 6th March, 1974. After excluding the time spent in obtaining copies of the judgment and decree the last day of limitation for filing the revision-petition was 28-5-1974. It appears that in the meantime the plaintiff applied for obtaining copy of the judgment of the trial court on 4-5-1974, but no copy was delivered to him by the copying department & the application was returned to him on 31-5-1974 for presentation to the proper court as the record of the trial curt had been sent to the record room at Pali. Thereafter, the plaintiff again presented his application to the copying deparment Pali, on 1-6-1974 & a copy of the judgment of the trial court was issued to him on 8th July, 1974, Thereafter he filed the revision petition on 29th July, 1974 Having regard to the fact that the petitioner had actually made an application for obtaining a certified copy of the trial court's judgment before the limitation prescribed for the revision-petition had expired, this Court is of the view that the rime spent in obtaining the copy of the trial court's judgment should be excluded from computing the period of limitation. Under Rule 132 of the High Court Rules a revision-petit ion must be accompanied by a certified copy of the trial court's judgment and so the revision-petitioner, in my opinion, can take advantage of Section 12 of the Limitation Act for having excluded the time spent in obtaining a certified copy of the trial court's judgment, from computing the period of limitation prescribed for filing the revision-petition. Hence, the preliminary objection raised by the learned Counsel for the non petitioner is over ruled and the revision-petition is treated to have been filed in time.
5. On merits, it was argued by learned Counsel for the petitioner that the appellate court committed an error in holding that the pro-note Ex. 1 & the receipt Ex. 2 were not executed by Shri Krishna, deceased father of Ambalal defendant, after going through the accounts. The above contention is not devoid of force. From the statements of Moti Lal dated 24th February, 1969 and 11th November, 1972, it is fully proved that Shri Krishna signed the pro-note and the receipt in his presence. Moti Lal was cross-examined by learned Counsel for Ambalal but nothing could be elicited from his statement, which may tend to show that the pro-note and the receipt were not signed by Shri Krishna deceased and his signatures were forged on these two documents, Amba Lal defendant appeared in the witness-box. He merely stated in his deposition that signatures on the pro-note & the receipt are not of his father Shri Krishna, deceased. e denial is not sufficient to rebut the evidence of the plaintiff on this point especially when it finds corroboration from entries in the Rokar Bahi Ex. 3 and in Khata Ex. 4. In Ex. 3, there is an entry of Rs. 300/-, which reads as follows.
Jh xksre Lokehth egkjkt dk HkaMkj Hkjiqj jslh la- 2021lko.k on 6 rk- 21&7&65 300 Jh fdjluth csVk ekuhjketh lkfdu Jh fdjluth osVk ekuhjketh lkstrjksM+ xqtjxksM+ lkstrjksM okyk [kkrs jgs ys[ks : 300 rhu lkS chjke.k jksdM+k :- 2200 vk;k us :- 300 rhu vax m/kkj th.k jks cdk;k izsesljhuksV yh[k nksuksa NslkS ckdh j[kk lks ukosa ekfM;k ,-,l-Mh-n- Jh ch;kt iz 1 lSdM+k lq ,l-Mh- Jh fdlu nfdlu xkSM o --------
6. The entries on the debit as well as credit side in Ex. 3 are signed by Shri Krishna deceased. These entries are proved by the statement of Shri Moti Lal dated 11th November, 1972. From the statement of Shri Moti Lal and the Rokar entries it appears that Rs. 2200/-, were paid by Shri Krishna deceased to the plaintiff towards the price of the house and for the payment of the amount of Rs. 300/-, a promote Ex. 1 and receipt Ex. 2 were executed by him in favour of the plaintiff. Moti Lal has categorically Stated in His deposition dated 11th November, 1972 that the Rokar Bahi was maintained by him regularly in the course of business Curiously enough, he was not cross-examined on this point by the defendant His evidence remains unshaken so far as it relates to the execution of the pro-note an the receipt by Shri Krishan, deceased. Both the courts below took a wrong and perverse view of the evidence on the record and dismissed the suit of the plaintiff, although it has been satisfactorily proved by the statements of Moti Lal that the pro-note was execute d by Shri Krishana deceased, for consideration. The learned Counsel appearing on behalf of the non-petitioner vehemently contended before me that the consideration setup by the plaintiff was different from the consideration which he sough to prove at the trial and in such a case the burden of proving consideration was on the plaintiff which he failed to discharge. In support of his above contention he relied upon Kastoorchand v. Motilal 1955 R.L.W. 249, Sheo Sahava v. Bhagtawara 1959 R.L.W. 295 and Kudanlal v. Custodian, Evavuce Property A.I.R. 1961 S.C. 1316. I have perused the aforesaid rulings and found the contention of the learned Counsel for the non-petitioner untenable. The consideration set up by the plaintiff in the pro-note Ex. 1 on the basis of which he shed the defendant was not different, from the consideration which he sought to prove at the trial. From a, bare lock into the pro note Ex. 1, it appears that Shri Krishna deceased executed the pro-note for the balance of Rs. 300/-, after going through the accounts Moti Lal plaintiff also stated, in his, deposition at the trial that Rs. 300/-, were, upon accounting, found outstanding against Shri Krishna deceased. According to, his version, he sold his house for Rs. 2500/-, to Shri Krishna deceased. The deceased paid him Rs. 2200/-, towards the sale price and executed a pro-note for the balance of Rs. 300/-, in his favour. He made an entry to this effect in his Rokar Bahi Ex. 3 and Khata Bani Ex. 4. In view of his above statement supported by documenery, evidence i.e., entries in Rokar Ex. 3 and Khata Ex. 4, it is very difficult for me to hold that the consideration set up by him in the document on which he sued, was different from the consideration, which he sought to prove at the trial. The learned Counsel for the petitioner further contended that it has not been, mentioned in the sale-deed of the house that a sum of, Rs. 2200/-, only was paid to the vendor and for the balance of Rs. 300/-, a pro-note was executed by Shri Krishna deceased, vendee and so the consideration set-up by the plaintiff for the execution of the pro-note was false. The above contention also has no substance, because, after receiving. Rs. 2200/- as part payment towards the sale price of the house and after having got executed a pro-note by, Shri Krishna in his favour for payment of the balance of 300/-, the plaintiff vender rightly admitted in the sale deed that the full amount of Rs. 2500/-, had been paid to him by the vendee. Failure of consideration of the pro-note cannot be presumed merely because it was not mentioned in the sale deed of the house that a sum of Rs. 2200/-, only vas paid to the vendor by Shri Krishna deceased and for the balance of Rs. 300/-, a pro-note was executed in favour of the vendor. The sale-deed does not reveal that the entire sale money was paid by Shri Krishna vendee to the vendor in the presence of the registering authority at the time when the Sale-deed was registered. Apart from this' a special rule of evidence provided in Section 118 of the Negotiable Instruments Act is applicable to pro-notes which are negotiable instruments. There is presumption under Section 118 of the Negotiable Instruments Act that the negotiable instrument was made for consideration. Onus to prove failure of consideration lies on the defendant in such a case. The defendant has utterly failed to prove want of consideration. This aspect was not considered by the courts below.
7. Consequently, I accept the revision-petition, set aside the judgment and decree of the courts below and decree the suit of the plaintiffs for recovery Rs. 300/-, principal plus Rs. 90/-, as interest according to the stipulated rate of 12% per annum with costs. The plaintiff shall get pendente lite and future interest also at the rate of 3% per annum.