RAMBOHOR MISIR Vs. CHATURGHUN RAI

JUDGEMENT

(1.) This is a plaintiff s application under Section 25, Small Cause Courts Act. The trial Court has dismissed his suit on the ground that it is barred by the law of limitation. He sued on a promissory note, dated 18th June 1930. A few days before the expiration of the three years period, an endorsement was made on the promissory note purporting to be a recital of the payment of Rs. 10, and it was claimed that this saved limitation. The Court however has found that in spite of the endorsement and in spite of the fact that both parties at the time intended the endorsement to save limitation no payment was actually made, and in consequence the claim of the plaintiff-applicant had become time barred when the suit was filed.

(2.) The decision is attacked on several grounds which I may take in order. In the first place, it is argued that as the endorsement was made on the promissory note and purported to recite a payment of Rs. 10, no evidence should have been admitted to prove that the payment had not been made and the Court in allowing such evidence violated the provisions of Section 91 Evidence Act. The position was that the parties had arranged that the endorsement should be made in order to attract the provisions of Section 20, Limitation Act, and this was a matter that was "required by law to be reduced to the form of a document," and no evidence was admissible in proof of such matter except the document itself, namely, the endorsement. There is no doubt to my mind that the matter was one which was required by the provisions of Section 20, Limitation Act, to be reduced to the form of a document; and no evidence could be given in proof of that matter except the document itself. It has certainly been argued by Mr. Kamla Kant Verma for the opposite party that the evidence that was offered was not in proof of the matter, but in disproof of it, namely, to show that no payment had been made. I think however that the term "in proof of such matter" must carry with it the term "in disproof of it," because if evidence were to be admitted on one side, it would have to be admitted on the other; and I am therefore of opinion that Section 91, Evidence Act precludes this oral evidence, and in consequence it must be assumed for the purposes of this case that the payment was made.

(3.) The next point taken is that, this being the case, part payment of the principal has been proved under Section 20, Limitation Act, and consequently a fresh period of limitation had to be computed from the date of the endorsement. It has been pointed out that in the plaint the plaintiff-applicant claimed that the payment was a part payment not of principal, but of interest. That part of the plaint has been read out to me and it appears that although the plaintiff did not in terms state that the payment was one towards the interest, he did at any rate in the figures which he gave at the foot of the plaint imply that the payment had been appropriated towards interest and not towards the principal. The argument then used for the opposite party is this. Under Sub-section (1), Section 20: