Alimane Sahiba v. Kolisetti Subbarayudu

1. This revision petition has been filed by the plaintiff in Section C. Suit No. 861 of 1928 on the file of the District Munsif's Court, Nellore. The plaintiff instituted the above small cause suit on the footing of a promissory note, dated 4th August, 1925, executed by the defendant in plaintiff's favour for Rs. 180. The plaint was filed on 4th August, 1928, namely, the last day of the period of limitation for filing a suit on the promissory note. The defendant, after obtaining time to file a written statement, filed a written statement on 1st October, 1928, in which he admitted the execution of the promissory note sued on but pleaded discharge. Subsequently, as the learned District Munsif remarks in his judgment,

"when the argument upon the question of discharge was proceeding, the defendant discovered a legal objection to the maintainability of the suit on the ground that the stamp affixed to the promissory note had not been cancelled as required by Section 12 of the Stamp Act and that the promissory note should accordingly be treated unstajnped for any purpose."

The learned District Munsif, after noting that the stamp on the promissory note was in no way cancelled but remained intact without any marks on the same, came to the conclusion that the promissory note must be taken to be unstamped and accordingly inadmissible in evidence. At that stage, the plaintiff came with an application for amending the original plaint by inserting certain allegations to the effect that money was lent to the defendant the same day, though a promissory note was also executed by the defendant on the same day, and claiming that the plaintiff would be entitled to recover the money, as money lent, even though the promissory note be held to be inadmissible in evidence. The learned District Munsif, as I read his judgment, understood the case of the plaintiff to be that the advance of the loan and the execution of the promissory note were simultaneous; and relying on the decision of this Court in Muthu Sastrigal v. Visvanatha Pandara Sannadhi ( 1913) I.L.R. 38 M. 600 : 26 M.L.J. 19 he came to the conclusion that the plaintiff was not entitled to recover even on the foot of the new allegations, seeing that the promissory note was inadmissible in evidence. He accordingly dismissed the suit. The plaintiff has preferred the present revision petition.

2. The question was elaborately argued before me whether a plaintiff Who takes a promissory note in respect of moneys advanced by him to the defendant the same day would be entitled to recover on the footing of the money advanced in cases where the promissory note is inadmissible in evidence. The learned advocates who argued the case before me drew my attention to the difference of opinion that apparently exists on this point between the decisions of the several High Courts in India. It was submitted that the decision in Muthu Sastrigal v. Visvanatha Pandara Sannadhi (1913) I.L.R. 38 M. 600 : 26 M.L.J. 19 by Sadasiva Aiyar and Spencer, JJ. is clear that, in a case where the advance of the money and the execution of the promissory note are simultaneous, it would be against the policy of Section 91 of the Indian Evidence Act to allow the plaintiff to recover on the footing of money advanced when the promissory note is inadmissible in evidence. It was also mentioned to me that that decision of the learned Judges has been subsequently followed in this Court in other cases, though it must be said, that in none of the other cases, to which my attention was drawn, were the advance of the loan and execution of the promissory note simultaneous and part and parcel of the same transaction. The view held by the learned Judges in Muthu Sastrigal v. Visvanatha Pandara Sannadhi (1913) I.L.R. 38 M. 600 : 26 M.L.J. 19 has been accepted by a Full Bench of the Allahabad High Court in the case reported in Nazir Khan v. Ram Mohan (1930) I.L.R. 53 A. 114 (F.B.). The view of the Lahore High Court would also appear to be the same. See Chanda Singh v. The Amritsar Banking Co. (1921) I.L.R. 2 Lah. 330 at 334 and Gurdas Mal Singh v. Ishar Das (1921) 3 I.L.R. 157. The decisions of the Calcutta, Patna and Rangoon High Courts would seem to be different in this respect. See Sudhir Chandra Das v. Gobinda Chandra Roy (1917) I.L.R. 45 C. 538, Ram Ragubhir Lal v. The United Refineries (Burma), Ltd. (1930) I.L.R. 9 Rang. 56 and Dhaneswar Sahn v. Ramrup Gir (1928) I.L.R. 7 Pat. 845. The decisions in Krishnaji Narayan v. Rajmal Manikchand (1899) I.L.R. 24 Bom. 360 and Jacob and Co. v. Vicumsey (1926) 29 Bom. L.R. 432 would also seem to be against the Madras view. In the latest Bombay case reported in Jacob and Co. v. Vicumsey (1926) 29 Bom. L.R. 432 one learned Judge of that Court divided cases that are likely to occur under such circumstances into three classes, and would seem to be of the opinion that, in cases where the loan and the promissory note form part of the same transaction, the plaintiff would not be entitled to recover, though in the other two cases put by the learned Judge the plaintiff would be entitled to recover. Illustration (b) of Section 91 of the Indian Evidence Act would also prima facie seem to be against the plaintiff in such cases. The learned Judges in Muthu Sastrigal v. Visvanatha Pandara Sannadhi (1913) I.L.R. 38 M. 660 : 26 M.L.J. 19, when informed by counsel of the fact that other High Courts have taken a different view, declined, as I understand their judgment, to have the decision of the Madras High Court re-opened on this point but were quite satisfied that the Madras view should be followed in this Presidency. Now, if the question arose in that neat form, namely, when the advance of the loan and the execution of the promissory note are simultaneous and form part of the same transaction, there is no doubt that I would be bound by the decision in Muthu Sastrigal v. Visvanatha Pandara Sannadhi (1913) I.L.R. 38 M. 660 : 26 M.L.J. 19 by a Bench of this Court, and the circumstance that some of the other High Courts have come to a different opinion on this matter is not really of very great use to me. It was also mentioned to me that in Somaraju v. Venkatasubbarayudu (1924) 20 L.W. 943 a learned Judge of this Court even declined to have a case said to raise a similar point referred to a Bench of two Judges. It being then clear that my duty, in a case involving the same question, would be to follow the decision in Muthu Sastrigal v. Visvanatha Pandara Sannadhi (1913) I.L.R. 38 M. 660 : 26 M.L.J. 19 the question arises, what exactly is the finding of the learned District Munsif in the present case? The District Munsif had before him the original plaint, which apparently contained a rather clear statement relevant to the question that I am now considering, and also the allegations in the application for amendment filed by the plaintiff. The learned District Munsif came to the conclusion that in the present case the loan and the execution of the promissory note should be taken to be simultaneous. I do not find any trace in the Lower Court's proceedings that the plaintiff wanted to let in any further evidence on this point; and I see no sufficient reason why the finding of the Munsif should not be accepted by me. So far as this portion of the case is concerned, then, having regard to the finding of the Munsif, as I understand the same, and having regard to the decision in Muthu Sastrigal v. Visvanatha Pandara Sannadhi (1913) I.L.R. 38 M. 660 : 26 M.L.J. 19 the first argument raised by the learned advocate for the plaintiff-petitioner before me should be overruled.

3. But, in my opinion, this does not, by itself, settle the question. An application for amendment of the plaint was made in the Lower Court, as already mentioned by me. The plaintiff who wants to have the plaint amended by including a cause of action based upon something other than the execution of the promissory note, will have to make other material averments in order to entitle him to a decree, in spite of and outside the promissory note. The question will arise whether he would be entitled, in such circumstances, to have such an amendment made. If I had to consider on the merits, the plaintiff's application to amend the plaint in the present case, then, a recent decision of a learned Judge of the Bombay High Court in Burjorji v. Hormusji (1931) 34 Bom. L.R. 643, will be relevant and will have to be carefully considered. In the present case there is the further circumstance that the plaintiff filed her plaint on 4th August, 1928 - that is, on the last day of three years from 4th August, 1925--whether there were two transactions, one independently of the other, or there was only one transaction, on 4th August, 1925. Prima facie, therefore, a plaintiff, who wants to have a new cause of action added to the plaint long after the period of limitation for enforcing that cause of action had expired, would have a difficult point to get over, and I am not surprised that in the present case the District Munsif was not inclined to allow the amendment, having also regard to the fact that, if a fresh suit had then been filed on the new cause of action, the same would admittedly be barred by limitation. Having regard to the view I take on two other points that I am going to mention, I do not think it necessary for me to give a decision on the question whether the plaintiff is entitled to have the amendment prayed for in this case.

4. Two more points remain for consideration. The first is, what is the effect of the admission made by the defendant in the written statement filed by him on 1st October, 1928, admitting the allegations in the plaint and the promissory note on which the suit was based? The only defence raised in the written statement was one of discharge, and from the notes-paper I find that that is the view that the District Munsif also took of the written statement. Having then admitted execution of the promissory note but only pleaded discharge, I have to consider the effect of Section 58 of the Indian Evidence Act on the rights of the parties to the present case. Under Section 58 of the Indian Evidence Act "no fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing they agree to admit by any writing under |their hands,.. provided that the Court may in its discretion require the facts admitted to be proved otherwise than by such admissions". I may state that, so far as I understand the proceedings in this case, the District Munsif has not thought it necessary to call in aid the proviso attached to the section. I find that the note he made in the notes-paper is that "the defendant admitting the promissory note pleads discharge" and the only question for consideration, therefore, is "the plea of discharge". The defendant having admited the execution of the promissory note but having only raise a plea of discharge, what is the effect of the subsequent discovery made by the defendant that the promissory note was not "duly stamped"? As I said, the objection relating to the promissory note not being duly stamped arises from the circumstances that, though the promissory note has a proper stamp affixed to it, there are no indications on the stamp of the same having been in any manner cancelled as required by Section 12 of the Stamp Act. Under the provisions of section 12, therefore, it must be taken that this promissory note was not duly stamped, and accordingly, if any question arose as to its admissibility in evidence, the same may have to be held to be inadmissible. But having regard to the provisions of Section 58 of the Evidence Act just referred to by me, facts admitted need not be proved, and therefore the circumstance that the promissory note was not admissible in evidence is immaterial for the purposes of this case. The whole discussion turning on the inadmissibility of the promissory note is, as far as I am able to see, quite irrelevant in the circumstances, having regard to the defendant's admission referred to by me.

5. The second point that has to be considered is this : the promissory note in question has been exhibited and marked as Ex. A in this case. I have looked into the document. It bears an endorsement to the following effect: - "Produced on 4-8-28 by plaintiff's pleader, admitted by the defendant in his written statement on 10-12-28 and filed as Ex. A"; then there is the initial or signature of the District Munsif. The usual appendix of list of documents filed and witnesses examined, attached to the judgment, also contains these remarks: - "Ex. A, 4-8-5, suit promissory note". Now, when once this document has been admitted in evidence and marked as an Exhibit, then having regard to the provisions of Section 36 of the Indian Stamp Act, its admissibility could not be re-opened on the ground of the document not having been duly stamped. That position being clear under the provisions of Section 36 of the Stamp Act, the whole discussion would thus seem to be entirely unnecessary, and for no purpose, so far as the facts of this case are concerned.

6. The result, therefore, is this. So far as the present case is concerned, I must take it that the promissory note sued on is admitted by the defendant. It has further been exhibited and marked as Ex. A. The plea raised by the defendant, namely, discharge, has to be tried, and the basis for the dismissal of the suit by the District Munsif, viz., that the promissory note has not been duly stamped, either does not in the circumstances arise, or, is no longer available, as the document has been admitted having regard to the provisions of Section 36 of the Indian Stamp Act.

7. For the above reasons, I reverse the order passed by the learned District Munsif on 14th December, 1928, and remand Section C. Section No. 861 of 1928 for disposal in accordance with law.

8. As regerds the costs of this revision petition, I must state that the plaintiff's conduct in this case, in not having drawn the attention of the Lower Court to the admission in the written statement and to the provisions of section 36 does not, in my opinion, justify the costs of the present Civil Revision Petition being awarded to her. The order, therefore, as to the costs of this petition is that each party will bear the costs of the revision petition. The costs of the suit will be provided for by the District Munsif in the final decree to be passed by him.