Law: Civil Procedure Code (V of 1908)

Section: 2

Civil Procedure Code (V of 1908)---O. XXXVII, Rr. 2 & 3---Negotiable Instruments Act (XXVI of 1881), S.118(a)---Suit for recovery of amount on the basis of Promissory Note---Petition for leave to defend suit---Words "until the contrary was proved" occurring in S.118(a), Negotiable Instruments Act, 1881---Connotation---Maker of the promissory note furnished an unconditional undertaking to pay on demand or at a fixed or determinable future time the amount mentioned therein---Under S.118(a) of the Negotiable Instruments Act, 1881, a presumption was attached to the negotiable instrument that it was for consideration---Words "until the contrary was proved" as used in S.118 of Negotiable Instruments Act, 1881, had revealed that said presumption was rebuttable and the maker of instrument, even if he admitted the execution and had signed the same, could lawfully prove that the same was without consideration---Onus to prove the same would lay on the maker---In the present case, defendant had categorically contended that the promissory note and the cheques were obtained as guarantee on account of mutual trust and same were without consideration---No counter-affidavit in that regard was filed along with the reply---Trial Court, in circumstances, should have not declined to grant the leave to defend as cogent reasons for allowing the same did exist---Whenever the court was satisfied that plausible defence had been put forth by the defendant, then the grant of leave to defend under O.XXXVII, R.3, C.P.C. was necessary and expedient for ends of justice---By disallowing the petition for leave to defend and consequently on passing the impugned and decree, Trial Court had committed material illegality causing gross miscarriage of justice---Impugned and decree were set aside, and petition for leave to defend moved by the defendant was accepted, in circumstances. Muhammad Azizur Rehman v. Liaquat Ali 2007 SCMR 1820 and Altaf Sarwar v. Shamas Din 2005 YLR 2614 ref. JUDGMENT RAUF AHMAD SHEIKH, J.--- The appellant has challenged the judgment and decree dated 19-2-2004 passed by learned Additional District Judge, Burewala, District Vehari, whereby the suit for recovery of a sum of…

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