ALLAHABAD BANK Vs. KUMARA SWAMY

JUDGEMENT

(1.) THE suit based on Ext. A2 and Ext. A4 promisory note for Rs. 2000/- and R s. 3000/- respectively executed by the defendant on 10. 3. 1981 and 18. 3. 1981 was dismissed on the ground of limitation. THE appeal also failed. THErefore, this second appeal mainly raising a question of law weather taking into account the payment effected on 14. 3. 1983 the period of limitation is saved. In the plaint the specific averment was that the cause of action had arisen on the date of the promisory notes and also on 28. 1. 1986, when the lawyers notice was issued to the defendant demanding payment on 19. 2. 1986 when the first defendant remitted Rs. 507- in the bank and acknowledged the debt. THE payment alleged to be made on 14. 3. 1983 was never a part of pleading. THE remittance made on 19. 2. 1986 was beyond the period of limitation commencing from 10. 3. 1981 or 18. 3. 1981 as the case may be. Ext. A8 is the document to prove the alleged payment of Rs. 507- on 19. 2. 1986. THE trial court did not believe that evidence. In appeal the lower appellate court found that even if Ext. A8 is admitted in evidence and relied on, as the payment was on 19. 2. 1986 it was beyond the period of limitation commencing from the dates when the promisory note were executed. So even going by the pleading the question of law as framed by the plaintiff himself does not at all arise for consideration. Now the plaintiff is trying to introduce a new document by filing CMP. 1424/90 under 0. 41 R. 27. That is a pay-in-slip dated 14. 3. 83. That was in the knowledge and possession of the plaintiff. Even if, as averred in the affidavit in support of the said CMP, could not be traced out it ought to have been pleaded in the written statement as it could be born out by the account kept by the plaintiff. THEre was no such pleading even. In such circumstances there arise no question of allowing the plaintiff to adduce an additional evidence as held by the supreme Court in State. Of U. P. v. Mannodhan Lai (AIR 1957 SC 912 ). By exercising the power under the said rule, the court shall not allow any party to fill in a lacunae or lapse on his part. THErefore, that petition shall stand dismissed. THE appellant has also tried to improve his case by filing CMP. 2083/98 to amend the plaint to include an averment with reference to the payment. Such an amendment introduced a new cause of action with reference to that date of payment and to re- vitalis e a State claim. That cannot be allowed in a second appeal. Accordingly based on the facts pleaded and on evidence available as on the date of disposal of the suit as well as the disposal of the appeal by the lower appellate court, the suit stood barred by limitation. Over and above the plaint did not contain a pleading in terms of 0. 7 R. 6 with reference to the ground of exemption from the law of limitation referring to the payment alleged to have been made on 14. 3. 1983 as made mention of in the question of law framed by the appeal. Appeal accordingly fails and is dismissed with costs. . .