GH MOHD SOFI Vs. SHIVJI BAGATI

JUDGEMENT

(1.) THE suit out of which this appeal has arisen was instituted by the plaintiff Shiv Ji Bagati against Ghulam Mohamad Sofi, Mst. Khatji Bibi widow of Hajee Samad Sofi, Mst. Fata Bibi and Mst. Mehri daughters of Samad Sofi resident of Gaw Kadal Srinagar for the recovery of Rs. 3897/ - Rs. 3300/ - principal rest interest, on the basis of a pro -note executed by defendant No. 1 and his father Hajee Samad Sofi on 26 -3 -1951 for a sum of Rs. 4500/ -.

(2.) THE plaintiffâ„¢s case was that the sum of Rs. 4500/ - was advanced to Hajee Samad Sofi and his son Ghulam Mohamad Sofi on 26 -3 -1951 and they executed a pro -note for the same in favour of the plaintiff. Hajee Samad Sofi died on 1O -1 -1957. There was accounting between the plaintiff and the defendants as a result of which Rs. .1200/ - were paid by the defendants towards the original debt to the plaintiff, and in acknowledgement of the balance of Rs. 3300/ - together with interest the defendant No. 1 put down his signature whereas the other defendants affixed their thumb impressions. A notice was served on the defendants to pay the amount but they failed to do so; hence the suit.

(3.) THE defendants pleaded inter alia that the suit pronote was without consideration, that the plaintiff with the assistance of the petition writer got a document signed and thumb marked by the defendants without reading and explaining the contents thereof to them, that the document was inadmissible in evidence as it was not stamped and the suit was barred by limitation; that the suit was bad for non joinder of necessary patles, and lastly that the suit under Order 37 C. P. C. was not maintainable because it was not based on the pro -note but was based on the statement of accounts.