GHINOO RAM Vs. KANHYA

JUDGEMENT

(1.) This second appeal, by a defendant, arises out of a suit for the recovery of a sum of Rs. 1,941 on the basis of a pronote dated 23-11-1949. The trial Court (Senior Subordinate Judge, Mahasu) dismissed the suit, holding that the pronote was void under Section 87 of the Negotiable Instruments Act., i.e., because it had been altered, otherwise than in order to carry out the common intention of the original parties. On an appeal being taken by the plaintiff, the learned District Judge of Mahasu, differing from the view of the trial Court, came to the conclusion that the alteration in the pronote had been made by the defendant himself. He further expressed his view that, in any case, it was open to the plaintiff to fall back upon the original consideration and a decree could be passed in favour of the plaintiff, without an amendment of the plaint. As regards the amount to be decreed in favour of the plaintiff, the lower appellate Court was of the opinion that the plaintiff could be awarded a decree for only Rs. 1,000 plus interest thereupon at 12 per cent. per annum. As regards the balance of Rs. 471, the plaintiff had offered to be bound by the statement of the defendant on special oath, that offer was accepted by the defendant and he made a statement on special oath, as desired by the plaintiff. Consequently, the District Judge considered that the plaintiff would have to forego his claim in respect of Rs. 471. In the result, the District Judge granted the plaintiff a decree for Rs. 1,000 plus interest at 12 per cent. per annum, amounting to Rs. 320. It is against this decree that the defendant has come up in second appeal.

(2.) Mr. Thakur Das for the appellant urged the following points:--(A) The lower appellate Court has erred in holding that the alteration in the pro-note had been made by the defendant. (B) In view of the alteration On the pronote--which, according to the appellant, was made without his consent--the suit was liable to be dismissed in toto. (C) It was not open to the plaintiff-respondent to fall back upon the original consideration after the pronote had been held to be void.

(3.) The learned counsel for the respondent, on the other hand, maintained that the findings of the lower appellate Court on these points were correct and in accordance with law.