Mst. Azram Jan widow & others Vs Muhammad sultan through L.Rs

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT

ABBOTTABAD BENCH

(Judicial Department)

R.F.A No. 15-A/2013

Mst. Azram Jan widow & others.

--------(Appellants)

V/S

Muhammad Sultan through L.Rs.

-------(Respondent/s)

Present: Mr. Tahir Faraz Abbassi, Advocate, for appellants.

Mr. Amanullah Khan Salik, Advocate, for the respondent.

Date of hearing: 31.03.2026

JUDGMENT

SYED MUDASSER AMEER, J.- Through this Regular First Appeal, the appellants have assailed the judgment and decree dated 05.12.2012 passed by the learned Additional District Judge-VII, Abbottabad whereby the suit of the respondent/plaintiff was decreed.

2.The respondent/plaintiff instituted a suit under Order XXXVII of the Code of Civil Procedure, 1908 for recovery of Rs.10,00,000/- against the predecessor of the present appellants. The claim was founded upon a promissory note and cheque No.4404232 dated (S.B.) Hon’ble Mr. Justice Syed Mudasser Ameer

15.05.2009 allegedly issued by the said predecessor in favour of the respondent.

3.The cheque was allegedly presented before the concerned bank but was dishonoured due to insufficient funds.

4.Summons were issued by the learned trial Court under Order XXXVII CPC. Initially the predecessor of the appellants was proceeded against ex-parte.

Subsequently the ex-parte proceedings were set aside and leave to defend was granted. He then filed written statement disputing the alleged liability.

5.Issues were framed and the parties led their evidence. During the pendency of the trial the defendant passed away on 08.03.2011. The present appellants, being his legal representatives, were impleaded and the trial continued. Ultimately the learned trial Court decreed the suit vide judgment and decree dated 05.12.2012.

6.Aggrieved, the appellants have filed the instant appeal.

7.Arguments heard and record perused.

8.The first question which arises for determination is whether a summary suit under Order XXXVII CPC can continue against the legal representatives of a deceased defendant who was the alleged executant of the (S.B.) Hon’ble Mr. Justice Syed Mudasser Ameer

negotiable instrument. Learned counsel for the appellants contends that once the original defendant passed away, the summary suit could not legally proceed against his legal representatives who were not signatories to the instrument. Reliance is placed upon sections 29 and 29-A of the Negotiable Instruments Act, 1881 and the judgment in Bushra Bibi and others v. Additional District Judge and others (2022 MLD

9.The contention carries weight. Order XXXVII CPC provides a special and summary procedure for suits based upon negotiable instruments such as bills of exchange, hundies and promissory notes. Liability under such instruments flows from the act of execution itself.

10.Section 29-A of the Negotiable Instruments Act, 1881 clearly stipulates that no person is liable as maker, drawer, endorser or acceptor of a promissory note, bill of exchange or cheque unless he has signed the instrument as such. Section 29 further provides that a legal representative becomes personally liable only where he himself signs the instrument without limiting his liability to the extent of the estate received. Thus liability under a negotiable instrument is fundamentally founded upon the act of signing it, and a person who (S.B.) Hon’ble Mr. Justice Syed Mudasser Ameer

has not signed the instrument cannot be held liable as its maker or drawer.

11.The same principle has been reiterated in Bushra Bibi and others v. Additional District Judge and others (2022 MLD 1555) wherein it was held that legal heirs who are neither makers, drawers nor endorsers of a cheque cannot be sued under Order XXXVII CPC merely because they are successors of the executant and that such a suit is not maintainable against them.

12.In the present case it is an admitted position that the predecessor of the appellants passed away during the pendency of the suit. The appellants, being his legal representatives, were not signatories to the promissory note or the cheque. Their liability could therefore not be determined through the summary procedure prescribed under Order XXXVII CPC.

13.Although a claim for recovery of debt may survive against the estate of a deceased person, the special summary procedure under Order XXXVII CPC is confined to the executants of the negotiable instrument. If the respondent intended to pursue his claim against the estate of the deceased defendant, the proper course was to institute an ordinary civil suit.

14.The learned trial Court therefore fell in error in continuing the summary proceedings against the legal (S.B.) Hon’ble Mr. Justice Syed Mudasser Ameer

representatives of the deceased defendant and in ultimately passing a decree against them. On this ground alone the impugned judgment and decree cannot be sustained.

15.Even otherwise, the decree cannot be maintained on merits.

16.It is correct that a negotiable instrument carries a statutory presumption of consideration under section 118 of the Negotiable Instruments Act, 1881. Until the contrary is proved, the law presumes that the instrument was made or drawn for consideration.

Reference may be made to Haji Karim v. Zikar Abdullah (1973 SCMR 100) and Rab Nawaz Khan v.

Javed Khan Swati (2021 SCMR 1890).

17.The presumption, however, is not conclusive. It is rebuttable. The burden to rebut it lies upon the person who denies the passing of consideration. The question then arises as to how this presumption may be rebutted.

The Hon’ble Supreme Court in Rab Nawaz Khan v.

Javed Khan Swati (2021 SCMR 1890), while relying upon the judgment of the Indian Supreme Court in Bharat Barrel and Drum Manufacturing Company v.

Amin Chand Payrelal ([1999] 1 SCR 704), has clarified that the defendant may rebut the presumption by raising a probable defence. The burden may be discharged either by producing direct evidence showing that no (S.B.) Hon’ble Mr. Justice Syed Mudasser Ameer

consideration passed, or by bringing on record circumstances which, on the touchstone of preponderance of probabilities, render the existence of consideration doubtful or improbable.

18.It is equally well settled that a mere denial of consideration is not sufficient to rebut the statutory presumption. The defendant must place before the Court such facts and circumstances upon consideration of which the Court may either believe that the consideration did not exist, or that its non-existence is so probable that a prudent person, in the circumstances of the case, would act upon that supposition. Once such a probable defence is established, the presumption under section 118 stands displaced and the burden shifts back to the plaintiff to prove the underlying transaction and the passing of consideration through independent and credible evidence.

19.Reference may also be made to Muhammad Arshad v. City Bank N.A. (2006 SCMR 1347), Bashir Ahmad v. Shahid Nadeem (2022 MLD 1955) and Shaukat Ali v. Abdul Ghaffar (2026 CLC 30), wherein it has been reiterated that the statutory presumption merely shifts the initial burden of proof and once the defendant succeeds in raising a probable defence, the onus reverts to the plaintiff to prove the validity of the instrument and the consideration underlying it.

(S.B.) Hon’ble Mr. Justice Syed Mudasser Ameer

20.The law on the subject may be stated thus. The presumption under section 118 of the Negotiable Instruments Act, 1881 that a negotiable instrument was made or drawn for consideration is rebuttable. The defendant is not required to conclusively prove absence of consideration; it is sufficient if he raises a probable defence by bringing on record circumstances which, on the touchstone of preponderance of probabilities, render the existence of consideration doubtful or improbable.

Once such a probable defence is established, the statutory presumption stands displaced and the burden shifts back to the plaintiff to prove the underlying transaction and the passing of consideration through independent and credible evidence.

21.In the present case, although the predecessor of the appellants did not deny his signatures upon the instrument, he categorically disputed the passing of consideration.

22.The evidence produced by the

respondent/plaintiff fails to establish when, where and in whose presence the alleged amount of Rs.10,00,000/- was advanced.

23.The respondent examined seven witnesses. Their testimony reveals significant deficiencies. PW-3, the Notary Public, admitted that he had not recorded the signatures or thumb impressions of the witnesses of the (S.B.) Hon’ble Mr. Justice Syed Mudasser Ameer

promissory note in his register. PW-5 admitted that he had no knowledge of the alleged financial dealings between the parties and did not know when the promissory note was written or whether the amount was paid in a lump sum or otherwise. PW-6 admitted that he was not present at the time of attestation of the promissory note and was not an eyewitness to the alleged payment of Rs.10,00,000/-.

24.The plaintiff himself stated that the amount was advanced at different times. He also admitted advancing further sums of Rs.2,00,000/- and Rs.3,00,000/- without producing any witness. Even the register of the stamp vendor bore only the signature of the defendant and not of any witness.

25.This evidence leaves the alleged transaction shrouded in uncertainty. The respondent failed to establish the date, place and manner in which the alleged loan was advanced.

26.The defendant could rebut the presumption under section 118 of the Act either by leading direct evidence or by exposing contradictions and shortcomings in the plaintiff’s case. The latter course was adopted here.

27.Once these contradictions surfaced, the burden shifted back upon the plaintiff to prove the passing of consideration. This he failed to do.

(S.B.) Hon’ble Mr. Justice Syed Mudasser Ameer

28.In such circumstances the plaintiff could not rely solely upon the statutory presumption attached to the negotiable instrument. As held in Habal Masih v.

Shahzad Vikcy (2025 MLD 2001), once the presumption stands rebutted the plaintiff must prove the underlying transaction and consideration through independent evidence.

29.The respondent has failed to discharge this burden.

30.Thus the suit was not maintainable against the legal representatives under the summary procedure of Order XXXVII CPC. Even otherwise, the respondent failed to establish that the instrument was executed for valid consideration.

31.The learned trial Court thus misdirected itself both on law and in appreciation of evidence while passing the impugned judgment and decree.

32.Consequently, the appeal is allowed. The judgment and decree dated 05.12.2012 passed by the learned Additional District Judge-VII, Abbottabad are set aside. Resultantly, the suit filed by the respondent/plaintiff stands dismissed.

Announced.

(Muhammad Tariq)

JUDGE

(S.B.) Hon’ble Mr. Justice Syed Mudasser Ameer