Basheer Ahmed Sayeed, J.
1. In this petn. the point raised is as to whether the learned Dist. Munsif was correct in throwing the burden of proof on the deft. when he framed the issue in the following manner :
'whether the suit note is not supported by consideration?' The deft. sought by way of an appln. to have this issue recast in the following manner : 'whether the deft. executed the suit note for any lease amount due'.
2. The learned Dist. Munsif had reld. upon the decisions reported in 'Balkisandas v. Rambakas', & 'Premraj v. Nathmal', I L R (1936) Nag 142. There it has been held that a mere admission that the consideration was not the one recited in the negotiable instrument would not shift the burden of the pltf. when the deft. denies consideration. These two decisions are of single Judges & so far as this Ct. is concerned, as laid down by the decision in 'Palaniappa v. Rajgopal', 1928 MWN 425, the rule has been that when the pltf. contends that the consideration is different from the one that is recited in the negotiable instrument the burden of proving want of consideration does not rest with the deft. but proof of consideration shifts on to the pltf. In the present case the recital in the promissory note is to the effect that cash consideration was paid. But in the plaint the pltf. has pleaded that the consideration was some lease amount that was due from the deft. The pltf. has practically shifted the ground, & he is not relying upon the recital in the promissory note for the nature or the quantum of consideration . In such cases I feel that the decision in 'Palaniappa v. Rajagopala', 1928 M W N 425 should prevail; otherwise it will cause serious injustice to the deft. if he is called upon to open the case & prove want of consideration.
3. Mr. Rangaswami Aiyangar appearing for the resp. has not been able to place before me any decision which is contra to the one reld. upon by the learned counsel for the petnr. His main point seems to be that since the deft. has applied to the Ct. nearly seven months after the issue had been framed, there is no equity in his favour in having come to this Ct. for revn. of the order refusing to recast the issue. I should say I am not very much impressed with this argument.
4. The next point raised by the learned counsel for resp. is that a matter like this ought not to be consd. & decided upon in revn., but the deft. should be allowed to go through the entire trial & that he should take up the point on appeal when the decision goes against him & particularly when it was always open to him to take up the point that the burden of proof was wrongly cast upon him. I do not think that is in the interests of justice or fairness to the parties that the matter should be allowed to go through like this, when it can be attended to & rectified even at the earliest possible stage. In this view, I am not impressed with this argument of the learned counsel either.
5. On a consideration of the facts of e case I am inclined to hold that in a case like this when the pltf. does not want to rely upon the original recital in the promissory note but wants to set up a different form of consideration for the suit pronote, he ought to prove the consideration, & the burden therefore is initially on him rather than on the deft. who denies consideration. No doubt the deft., in any event, will deny consideration, whether it be in cash or in some other form; but that itself would not take away his right to put the pltf. on his responsibility to prove the consideration to start with.
6. In this view I think there is substance in thispetn., which is allowed with costs.