DAITARI SAHU Vs. SOBANI DAS AND ORS.

JUDGEMENT

(1.) PLAINTIFF is the Appellant. Plaintiff brought the suit for recovery of Rs. 1, 358/10/ -on the basis of a promote dated 3 -10 -1953 (Ext. 9). The principal advanced on the pronote is Rs. 999/ -. Out of this, Rs. 160/ - was paid in cash, Rs. 506/ - was adjusted towards Plaintiff 's dues on a previous pronote dated 26 -10 -1947 and Rs. 333/ - was paid to Gandharba Misra, a creditor of Defendant No. 1. Inspite of repeated demands Defendant No. 1 and his undivided sons did not pay up the loan. Defendant No. 2 is the scribe of the suit pronote.

(2.) DEFENDANT No. 2 did not contest. Defendants 2 to 4 are the sons of Defendant No. 1. The other Defendants contested their suit alleging that Defendant No. 2 was addicted to opium and due to difference with the father got the suit pronote forged and the suit has been filed at his instance. A further defence was also taken that the plaint did not comply with the provisions of the Orissa Money -Lenders Act and the Rules made thereunder (hereinafter to be referred to as the Act and the Rule).

(3.) THE only contention raised on behalf of the Plaintiff -Appellant is that the learned District Judge should have permitted an amendment of the plaint on the basis of the verbal prayer. Facts necessary for a proper determination of this question must be stated in extenso. In paragraph 9 of the written statement, the contesting Defendants made a bald allegation that the suit was liable to be dismissed as the plaint was not in conformity with the provisions of the Orissa Money -lenders Act and Rules. No reference was made to any specific section or rule. No specific issue was also framed on this question though there is a general issue to the effect "Is the suit maintainable." There is no discussion on this point in the judgment of the trial court who recorded no finding as to whether the plaint was in accordance with the provisions of Rule 11. Ground No. 26 before the lower Appellate court was termed as follows: