Kendall, J.
1. This is an application for the revision of an order and decree of the Judge of the Small Cause Court, Jaunpur, dismissing the plaintiff's suit. The plaintiff's suit was based on a promissory note for Rs. 300. The contesting defendants, although they admitted that they had signed the promissory note and receipt, claimed that they had affixed their signature to a blank paper and that there was no consideration in cash. They alleged that they had induced the plaintiff to give evidence for them in a mutation case by affixing their signature to the promissory note and receipt. On these pleadings the Judge framed an issue in the following form;
Did the defendants execute the promissory note in suit for consideration?'
2. The burden of proof was in fact thrown on the plaintiff and he produced himself and two witnesses, viz., the witness to the promissory note and receipt and a mukhtar, to prove that the note had been duly executed for a cash consideration. Defendant 1 produced himself and one witness who alleged that he was present when the note was executed and that there was no consideration. It is argued in revision that this decision was contrary to law.
3. In the case of Muhammad Bakar v. Bahal Singh [1891] 13 All. 277 a Pull Bench of this Court defined the limitations of Section 25, Provincial Small Causes Courts Act, 1887. They held that the High Court should not interfere under that section,
unless it clearly appeared to us that some substantial injustice to a party to the litigation had directly resulted from a material misapplication or misapprehension of law or material error in procedure in the Court of Small Causes.
4. In the present case, after hearing counsel on both sides and examining the pleadings and the record, I am clearly of opinion that the learned Judge misdirected himself and that his conclusion is largely a result of that misdirection. Under Section 118, Negotiable Instruments Act, 1881, it is laid down that the presumption shall be made that every negotiable instrument was made or drawn for consideration until the contrary is proved. The issue should therefore riot have been struck in the form in which it was struck so as to throw the burden of proof on the plaintiff. It is true that both sides produced evidence. The Court however did not find that the defendants had made good their somewhat elaborate defence. It found, in the first place that 'the promissory note is not free from suspicion.' No reason however is given for this statement, with which the judgment starts. The promissory note is as a matter of fact drawn on a printed form and there is nothing on the face of it that throws any doubt on its genuineness. The judgment proceeds however to show that in another litigation the plaintiff made a damaging admission, viz., that on a certain date subsequent to the date of the promissory note the defendants did not owe him any debt. This is not quite accurate, as what the plaintiff said was that the defendants had not executed any dastawez, and it is explained in argument that 'dastawez' is not ordinarily the term used for a promissory note so that it is by no means certain that the plaintiff was referring to a promissory note when he mentioned the word 'dastawez.' Nevertheless from this statement the Court has concluded that the promissory-note was a bogus note and it proceeds from this to the conclusion that the defence is correct without any discussion of the defence evidence or even a definite statement that this evidence had been considered on its merits.
5. As a matter of fact the defence evidence is worth very little. Defendant 1 came into the witness box and repeated what had been said in the written statement. One witness supported him so far as to say that the promissory-note was. 'bilarnuwaja.' This sounds suspiciously like the repetition of a pleading. There was no evidence beyond the statement of the one defendant to support the story that the plaintiff had agreed to give evidence in a mutation case on condition that the defendants executed a promissory note for Rs. 300. If the Court had had Section 118, Negotiable Instruments Act, in mind, and if the issue had been properly strupk and the burden of proof thrown on the defendants, it is scarcely conceivable that the decision would have been that the defence had been made good.
6. But apart from the weakness of the defendant's case there was clear evidence to support the story told by the plaintiff and the promissory note. Not only the plaintiff, but the man who had been a, witness to the promissory-note itself and the receipt and a mukhtar both said that Rs. 300 in cash had been paid to the defendants when those documents were written.
7. It has been argued that as both sides produced evidence the question of the burden of proof was not of great importance, for in such cases the burden of proof is constantly shifting. The learned Counsel for the applicant lias referred to the case of Moti Gulabchand v. Mahomed Mehdi Tharia Topan [1896] 20 Bom 367 in which a somewhat similar question as to the burden of proof was raised. There however were certain circumstances, which do not exist in the present case, but which were held to weaken the ordinary presumption that a negotiable instrument had been executed for value received, and in spite of those circumstances when the plaintiff produced evidence that was worthy to credit it was held that:
a heavy onus is thrown upon the defendant which can only be met by a perfectly truthful and harmonious statement which the Court feels able to rely upon with confidence.
8. In my opinion the evidence in this case produced for the defendants falls very far short of a perfectly truthful and harmonious statement, and if the Court had not misdirected itself throughout I do not believe that it would have been able to rely upon it with confidence.
9. In these circumstances I must allow the application for revision, set aside the order of the Judge of the Small Cause Court and direct that the plaintiff's suit be decreed with costs in both Courts.