RAMPADARATH THAKUR Vs. HARI NARAIN PRASAD

JUDGEMENT

(1.) THE suit which has given rise to this appeal was instituted by the plaintiffs who are respondents here, on the 11th january, 1958, for recovery of the principal amount of Rs. 1,375 along with Rs. 495 as interest, at 12 per cent. per annum, on the basis of a handnote, prima facie, dated the 11th January, 1955. It is not denied that the handnote was executed by the defendant in favour of the plaintiffs; but according to the defendant, it was executed on the 1st January, 1955, and not on the 11th January, 1955. Further, it has also been pleaded by the defendant that the original date of the handnote which was "1-1-1955" has been altered by the plaintiffs to "11-1-1955" with a view to save limitation, as on the 11th January, 1958, when the suit was brought, the handnote, as it originally stood, was barred by time. THEn there is also the defence taken that the handnote was executed in lieu of certain outstanding dues of plaintiff No. 2 against him. In the plaint, however, the claim was based exclusively on the footing that the handnote was not barred by time and, therefore, there was no averment made therein as to any case of acknowledgment Now, both the Courts below have concurrently found that there has been a change made in the date which was originally put in the handnote and that the original date was 1-1-1955. In other words, both of them are in agreement on the point that the change in date of the handnote from "1-1-1955" to "11-1-1955" is a subsequent alteration brought about by the plaintiffs. On this finding, the trial Court took the view, firstly, that this alteration was material and, therefore, the hand-note was void and no relief could be granted thereunder to the plaintiffs and, secondly, that on the very fact of it, in the absence of any pleading of acknowledgment in the plaint, the suit as instituted was barred by time. THEreafter the suit was twice remanded by lower appellate Court.

(2.) THE first remand was made in M A. No. 4 of 1960 with a direction to the trial Court to find out whether the claim under the handnote, though prima facie barred by time, could be saved by any subsequent acknowledgment made in respect thereof and then to decide the ease in the light of the finding given on the point. THEre was also a further observation made in the order of remand that in case the period of limitation under the hand-note was found to have been extended as a result of any acknowledgment made in respect thereof, then the alteration made in the date of the hand-note could not amount to any material alteration. THE trial Court after remand again dismissed the suit holding that the handnote in question was a forged document and hence it could not be enforced. Further, it also took the view that the change in the date of the handnote was brought about will) the definite design to avoid the period of mutation and as the plaintiffs failed to come for ward with any case of acknowledgment made in respect of it, they were not entitled to any decree on the basis of such a document. That led to M. A. No. 24 of 1961. But therein the case was again remanded to the trial Court by the order dated the 11th May, 1962, with certain directions as given in the judgment. But the trial Court again dismissed the suit. THE exact finding given by it after this second remand was that:

(3.) IN that connection, the first question that arises for consideration is whether in the absence of any averment made in the plaint in regard to acknowledgment, could any evidence be given in support thereof P Mr. Prem Lall appearing for the plaintiffs-respondents concedes that there was no such case made out in the plaint. IN fact, even the zarpeshgi deeds [Exs. 5 and 5(a)], on the basis of which the case of acknowledgment has now been set up, was originally not filed at the trial. It was only when the case was remanded on the first occasion by the Court below to the trial Court that the plaintiffs thought it advisable to file these documents. Therefore, prima facie, the case is fully attracted by the law as laid down in Mukh Narain Singh v. Ramlochan Tiwari, AIR 1941 Pat 147; Gulam Hussain v. Mahamadalli Ibrahimji, ILR 34 Bom 540; Uttam Chand Lal v. Mt. Thakur Devi, 69 INd Cas 419: (AIR 1922 Lah 39) and Debji Ghelabhai and Brothers v. R. D. Mehta and Co., Asansol, AIR 1935 Cal 255. IN the case of Mukh Narain Singh, AIR 1941 Pat 147 this point has been disposed of in these words: