JANGAM POMPAIAH Vs. H HANUMANTHA REDDI

JUDGEMENT

(1.) This appeal arises in a suit filed on the foot of a promissory note executed by the appellant before us in favour of one Hanmant Reddy, Two persons filed a suit viz., plaintiff No. 1 and plaintiff No. 2 Hanmanth Ready, plaintiff 1 being related to plaintiff 2 as his mother-in-law. The plaint allegation was that the 1st plaintiff had money lending business and that she advanced a sum of Rs. 7350.00 to the defendant and took a promissory note in the name of her son-in-law the second plaintiff. She alleged that the amount of the suit promissory note was not repaid in spite of repeated demands and hence the present suit had to be filed. The second plaintiff stated that the facts set out in the plaint were true and consented to a decree being passed in favour of the 1st plaintiff. The defendant in his written statement contended that the suit promissory note was not true and also pleaded want of consideration. He also pleaded that plaintiff 1 could not sue on the promissory note as she was not the holder thereof. He stated that inasmuch as the 2nd plaintiff had not paid the money, he was not entitled to any decree. The trial court framed the following issues; 1. Whether the suit is bad for misjoinder of parties and causes of action? 2. Whether the suit pro-note is true? 3. Whether the plaintiff No. 1 is entitled to sue as a benamidar? 4. Whether the plaintiff No. 1 has paid any amount to the defendant apart from the suit promissory note? 5. Whether the suit pro-note is not supported by consideration? 6. Whether the suit by the 2nd plaintiff is in time? 7. To what relief is the plaintiff entitled?

(2.) Plaintiffs 1 and 2 were examined as P. Ws. 1 and 2 in the case and the lower court held on the evidence that the suit pro-note was true. It also held on the evidence that the suit pro-note was supported by consideration. Therefore the only point that the court had to consider was the question of law viz., as to whether the plaintiff No. 1 was entitled to a decree or whether a decree could be passed in favour of the 2nd plaintiff? After considering the law on this point the court decreed the suit with costs in favour of the 2nd plaintiff and dismissed the suit of plaintiff No. 1. This appeal is against the above decree.

(3.) It is argued by the learned advocate for the appellant that the lower court was wrong in having awarded a decree in favour of the 2nd plaintiff for the simple reason that the relief that was claimed was only by the 1st plaintiff for a decree in her favour and the alternative relief that was claimed in favour of the 2nd plaintiff was made after the expiry of the period of limitation. It was urged that the adding of the relief in favour of the 2nd plaintiff was not in the nature of an amendment to the original plaint because, the plaint was returned to the plaintiff for answering a query of the office as to on what basis a decree was being asked for in favour of the plaintiff No. 1 when the pro-note was in favour of plaintiff No. 2. When the plaint was returned by the court, and represented y the 1st plaintiff she added in the prayer the following words: "And in the alternative in favour of the 2nd plaintiff." As has been observed above, it is urged that this could not have been allowed in law, and therefore, it must be regarded as though the suit was one by the 1st plaintiff alone asking for a relief in her favour.