NARAYANA PANICKER Vs. LONA VARKEY

JUDGEMENT

(1.) The petitioner is the plaintiff in O.S. 280 of 1122 on the file of the District Munsiff of Ernakulam. That suit is one to enforce a simple money claim against the defendant respondent to the tune of Rs. 108 4 as. The suit having been dismissed the plaintiff filed appeal No. 38 of 1124 on the file of the District Judge of Anjikaimal. The appeal also was dismissed. Against the decree in the said appeal this revision petition is filed as no second appeal would lie under S.86(2) of the Cochin Code of Civil Procedure, the suit being of a small cause nature and the value being less than Rs. 200.

(2.) The suit was filed on 29.5.1122 alleging that the date for payment of the amount claimed was 29-5-1119. That date of repayment is stated in the plaint to be contained in a letter alleged to have been given by the defendant to the plaintiff and mentioned in para. 1 of the plaint. The defendant denied the letter as alleged in the plaint but stated that he had given a letter to the plaintiff undertaking repayment of a certain sum on the 12th of Dhanu 1119. He also contended that the letter which is the basis of the suit is inadmissible in evidence and cannot form the basis of the action. He further contended that the claim is barred by limitation and that the date of repayment shown in the letter relied on by the plaintiff having been tampered with, the document is unenforceable having become void for material alteration. The plaint stated that the transaction was on or about the 3rd of Dhanu 1119. Upon these pleadings issues were raised. The second issue was "is the document admissible in evidence; is the plaintiff entitled to any relief on the basis of that document".

(3.) On the application of the defendant issue No. 2 was first taken up for disposal. The Munsiff found that the document is not admissible in evidence as it is a promissory note which being unstamped is admissible. Against that finding the plaintiff filed Civil Revision Petition No. 107 of 1123 in the Cochin High Court, which also ended adversely to the plaintiff; the High Court having taken the same view as the District Munsiff - Narayana Panicker v. Varki 39 Cochin Law Reports 606. Thereafter the defendant moved by Miscellaneous Petition No. 3994 of 1123 on the file of the Munsiff, for the dismissal of the suit, the sole basis thereof being the letter which had been found to be inadmissible. The Munsiff on hearing arguments and considering the question came to the conclusion that the only basis of the suit was the document which had been found to be inadmissible and that further trial of the suit was unnecessary. On this view the Munsiff dismissed the suit. Against that decree the plaintiff appealed in A.S. 38 of 1124 in the Anjikaimal District Court. The appellate court also came to the same conclusion and confirmed the Munsiff's decree. This revision is against the decree in the said appeal.