PARSHOTTAM MOTIBHAI PATEL Vs. ISHWARBHAI LALLUBHAI BIN DALABHAI

JUDGEMENT

(1.) The only question raised in this Appeal is the question of limitation and that question depends upon the admissibility of a document produced at Ex. 34/1 in the lower Court which is dated 27-10-1954 and which has been held by the lower Court to be an unstamped promissory note and as such inadmissible in evidence. For the purpose of this appeal only a few facts may be stated as bearing upon this question.

(2.) The present appellants who were plaintiffs before the lower Court filed Special Civil Suit No. 12 of 1961 from which this appeal arises on March 7 1961 for recovery of a total amount of Rs. 14 399 p. As per the amended plaint the case of the plaintiffs was that the defendant has borrowed a sum of Rs. 11 683 from the plaintiffs on 10-10-1954 and then passed a writing in this connection dated 27-10-54 i.e. the writing at Ex. 34/1 on the admissibility of which the question of limitation depends in the present case. According to the plaintiffs demand of the dues under this oral loan were made after this writing but the defendant did not pay anything except a sum of Rs. 2000/on 27-9-1958. Therefore the suit was filed for the principal amount of the oral loan giving credit of Rs. 2000.00. By para 4 of the plaint it was pleaded that the cause of action for the suit arose on 10-10-1954 when the defendant took loan from the plaintiffs. On the question of limitation the same para contains averments that the oral loan was acknowledged by writing dated 27-10-1954 and by a further writing dated 24-10-1957 and also by payment of Rs. 2000/on 27-9-1958 towards the dues which amount was credited in the latter writing written in the hands of the defendant. Therefore the period of limitation has been extended by these acknowledgments as per the case pleaded in para 4 of the amended plaint. The second writing dated 24-10-1957 was duly stamped and was exhibited at Ex. 74. It was for Rs. 13 901 Now it is not disputed that if the first writing at Ex. 34/1 is not admissible in evidence then the second writing having been passed more than three years after the date of original loan would not be effective to extend the period of limitation and therefore the present suit would become time-barred. Thus it is the question of admissibility of Ex. 34/1 alone which arises for determination in this appeal.

(3.) Before coming to that question we may deal with Civil Application No. 279 of 1963 given in this appeal for further amendment of plaint. By this application the cause of action for the suit is sought to be based on the latter writing dated 24-10-1957 saying that by this writing the defendant has made a new agreement to pay the dues. It is obvious that by this amendment a new cause of action is sought to be pleaded at a very late stage and after the period of limitation having expired and defence of limitation having accrued to the defendant before the date of this application. This is a serious difficulty in the way of the plaintiff seeking to plead an entirely new case giving him a new cause of action altogether. There is another and a more substantial objection to the granting of this amendment in appeal and it is this:- -