JUDGMENT
1. This revision arises out of a suit instituted in the Court of Small Causes at Gorakhpur on a promissory note. The defence was that the promissory note was executed without any consideration. The finding of the learned Judge of the Small Causes Court was that there was no consideration for the promissory note. On this finding the suit was dismissed. In revision before us it is contended that it was not open to the defendant to take the plea, much less was it open to him to bring in evidence to prove the plea that there was no consideration for the promissory note. The revision came before a learned Judge of this Court and that learned Judge on account of some supposed conflict of opinion in this Court referred the matter to a larger Bench. Section 92, Evidence Act, has got several provisos. The first runs as follows:
Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want of failure of consideration or mistake in fact or law.
2. There is therefore a clear statutory provision that it is open to a party to a document to prove that the consideration passed for that document. Now we shall consider whether there are any cases which purport to have laid down any rule of law, contrary to the clear provision of proviso 1 to Section 92, Evidence Act. The first case, which it is supported laid down a contrary view is that of Sri Ram v. Sobha Ram Ram Gopal Rai A.I.R. 1922 All. 213. It was a peculiar case and not one like the simple case which is before us. In view of the fact that the facts are not similar it is not necessary for us to deal with that case. In Ghanshiam Das v. Mithan Lal A.I.R. 1930 all. 529 the case in Sri Ram v. Sobha Ram Ram Gopal A.I.R. 1922 All. 213 was followed. The important question that distinguishes the present case from the case of Ghanshiam Das is stated in the judgment itself. The following quotation will make She point clear:
The promissory note was executed by the defendants in favour of the plaintiff, but the Court below has come to the conclusion that although the defendants received consideration, they did so not from the plaintiff but from Bisheshar Nath and has held that the suit is premature because the defendants state that settlement will be made between them when their accounts are settled.
3. In the case of Ghanshiam Das the consideration did pass but what was pleaded was not that there was any failure of consideration but that in spite of the clear language of the promissory note making the amount payable on demand the amount would not be paid on demand but on settlement of account. This was clearly against the terms of the compromise. This ruling therefore has no application to the case before us. The third case of Parmeshri Das v. Lachkman Pandit A.I.R. 1930 All. 824, is equally distinguishable. On the other hand, one of us held in Chaman Lal v. Hira Lal (1928) 108 I.C. 158 that proviso 1 of Section 92, Evidence Act, permits a party to a contract reduced into writing to establish, among other matters, want or failure of consideration.
4. An earlier case, viz., of Sheo Prasad Ram Prasad v. Gobind Prasad A.I.R. 1927 All. 292, decides that it is open to a defendant, who is a party to a promissory Dote, to establish that the promissory note was not given for any substantive consideration (but by way of a collateral security. The recital in a bond or in a promissory note that consideration has passed amounts only to an admission of the fact and like any other admission may be disproved as being incorrect. The admission no doubt throws the burden of proof on the party whose admission it is to prove that the admission is wrong, but nonetheless it is open to that party to prove that his own admission is in fact incorrect.
5. We are of opinion that proving that there was no consideration for a document in suit does not amount to varying the terms of the contract and in no way militates against the main provision of Section 92. In any case, proviso 1 clearly allows such evidence to be adduced. The application in revision fails and is hereby dismissed with costs.