C.M. Lodha, J.
1. This is a plaintiff's second appeal arising out of a suit for money based on a promissory note for Rs. 1451/- alleged to have been executed by one Ram Singh, father of defendants Nos. 1 to 5 and husband of defendant No 6. The plaintiff's case was that there were dealings between the plaintiffs and the decased Ram Singh on account of which a sum of Rs. 1451/ remained outstanding against Ram Singh for which he executed the promissory note in question. It is alleged that a sum of Rs. 101 25 paisa was repaid and after giving credit for this amount the plaintiff filed a suit for Rs. 1259 75 paisa principal and Rs. 226.62 as interest at the rate of Rs. 6/- percent., per annum, total Rs. 1486.37. The defendants denied the plaintiff's suit and pleaded ignorance regarding the execution of the promissory note by Ram Singh.
2. After recording the evidence led by the parties the trial court decreed the plaintiff's suit for Rs. 1259. 75 paisa and further directed that the defendants would be liable for payment of this amount to the extent of the property they have received from the deceased Ram Singh.
3. Aggrieved by the judgment and decree of the trial court the defendants filed appeal in the Court of Civil Judge, Sirohi, who allowed the appeal, set aside the judgment and decree of the trial court and dismissed the plaintiff's suit Consequently the plaintiffs have come in second appeal to this court.
4. The respondents have not appeared inspite of service to oppose the appeal. It also appears that parts 'B' and 'C', of the original file have been weeded out but the learned Counsel for the appellants has supplied certified copies of the statements of all witnesses. He, however, submits that he has not got certified copy of the promissory note Ex. 1 which is the basis of the suit. But the promissory note has been reproduced in full in the judgment of the first appellate court, and, therefore, the file of the case stands practically reconstructed.
5. The execution of the promissory note Ex. 1 has been held to be proved by both the lower courts and the suit of the plaintiffs has been dismissed by the first appellate court solely on the ground that the burden of proving of parsing of consideration lay on the plaintiffs & since they failed to discharge that burden, the suit was liable to be dismissed. According to the learned Civil Judge the consideration mentioned in the promissory note is different from one pleaded in the plaint and proved at the trial, and, therefore, the burden of proving consideration rested on the plaintiffs, and according to the learned Judge the plaintiffs failed to discharge that burden. It may the observed that the suit document in the present case is a promissory note which is a negotiable instrument as defined in the Negotiable Instruments Act, and Section 118 of the Negotiable Instruments Act provides that 'untill the contrary is proved every negotiable instrument shall be presumed to have been made or drawn for consideration. Thus it cannot be gain-said that the promissory note in question shall be presumed to be with consideration until the contrary is proved. Unfortunately for the plaintiffs the consideration mentioned in the promissory note itself is that Rs. 1451/- Wire borrowed in cash. In the plaint it was pleaded that there were dealings between the plaintiffs and Ram Singh and after taking account of the same, Ramsingh executed the promissory note for Rs. 1451/-, which were found due from him. In the course of evidence P.W. 1 Banshi Lal (Plaintiff) has stated that he had dealings with Ram Singh and in lieu of the amount outstanding against him, Ramsingh executed the promissory note in question. In the cross examination he has stated that Ram Singh had borrowed cash from him and had also taken some goods on credit, and after understanding the accounts the promissory note in question was written by him. No doubt, that is the only solitary statement on the point, but there is no evidence in rebuttal-from the side of the defendant. It has been nowhere stated by P.W. 1 Banshilal that he had in his possession any books of account pertaining to the transactions with Ram Singh. The learned Civil Judge has refused to believe the statement of Banshilal solely on the ground that he had not produced his Bahi-Khata to prove that the deceased Ram Singh had money dealings with him. No other reason had been given by him for disbelieving the plaintiffs statements. On going through the statement of Banshilal I find that he has nowhere stated that he has got any Bahi Khatas with him pertaining to the transactions with Ram Singh. In these circumstances the learned Counsel for the appellants is correct in his contention that the lower court was not justified in drawing an adverse inference against the plaintiffs and rejecting the plaintiffs statement solely on the ground of non-production of the Bahi Khata for the existence of which there is not even an iota of evidence. Thus the only ground on which the statement of the plaintiff has been disbelieved falls. Apart from that, it appears to me that it is usual in this part of the countary while writing promissory notes to treat the outstanding as cash (Roker) The plaintiff has, however, laid bare his case in the plaint itself and has stated in unequivocal terms that the promissory note in question was written in lieu of the amount due from Ramsingh to the plaintiffs and this allegation in the plaint is fully substantiated by the statement of the plaintiff.
6. Assuming for the sake of argument that the consideration mentioned in the document is different from what it has been pleaded in the plaint, and proved at the trial, one cannot lose sight of the fact that there is a presumption of law regarding the promissory note being with consideration. It was observed in a Full Bench decision of this Court: Heerachahd Jeev Raj and Anr. ILR 8 Raj. 717 that the correct position is that where both the parties have led their entire evidence, the matter rests on such evidence. But the court must not forget the presumption of law in favour of the promissory note being with consideration and must come to the conclusion on the entire evidence whether the consideration has been disproved.
7. In the case in hand both the parties have led evidence and there is positive statement of the plaintiff that the consideration of the promissory note in question was money advanced in cash as well as goods supplied on credit by the plaintiffs to the defendants. On the other hand there is absolutely no evidence from the side of the defendants on this point and all that they have pleaded is complete ignorance about the execution of the promissory note in question. Apart from that, it must not be lost sight of that there is a presumption of law arising in favour of the plaintiffs that the promissory note in question was with consideration and there is complete lack of evidence from the side of the defendants for disproving the consideration. The learned Civil Judge while judging the evidence of the plaintiff completely lost sight of this presumption of law, under Section 118 of the Negotiable Instrument Act. In other words there is no evidence on the record to disprove the consideration in the present case, and the passing of consideration stands proved by the statement of the plaintiff Banshilal himself. In this view of the matter finding arrived at by the learned Civil Judge that the promissory note in question was without consideration cannot be sustained and must be set aside.
8. In the result I allow this appeal, set aside the judgment and decree of the Civil judge, Sirohi, dated 1-10-1962 and restore the judgment and decree of the trial court dated 28th April, 1962. Since the respondents have not put in appearance in this Court there will be no order as to costs.