RAMDAYAL Vs. MAJI DEVDIJI OF THIKANA RIYAN

JUDGEMENT

(1.) THIS is a first appeal by defendant Ramdayal in a suit for recovery of money.

(2.) THE plaintiff's case was that there were money dealings between him and the defendant, and the latter went into accounts and struck a balance of Rs. 3,000/- in plaintiff's favour on Posh Sudi 9, Svt. 2005 in his Khata Bahi and signed the entry. THEreafter, on Posh Sudi 13, Svt. 2005, the defendant took a further loan of Rs. 7,000/- from the plaintiff in lieu of which also he signed an entry in the plaintiff's Khata Bahi. THE plaintiff further alleged that the defendant had agreed to give interest at the rate of 9% per annum. As the defendant had paid nothing towards the debt, the plaintiff instituted this suit on 13th June, 1949, for the recovery of Rs. 10,000/- principal and Rs. 392/- by way of interest, total Rs. 10,392/ -.

(3.) THE question still remains whether the principle referred to above has been applied to suits for money; for undoubtedly those would be cases much nearer to the case before us. Such an instance is furnished by the case reported as Subbaraya Chetty vs. Nachiar Ammal (4) (A. I. R. 1918 Mad. 143. ). THE learned trial Judge in that case dismissed the suit on the ground that it was premature owing to the terms of a certain bond. On appeal it was held by a Division Bench of the Madras High Court that having regard to the fact that the money became payable immediately after the suit was filed, it would be undesirable that the plaintiff should be compelled to institute another suit for the money, and the learned Judges reversed the decree of the District Judge and in view of what they called special circumstances of the case decreed the suit. This case was followed in Mst. Gulam Fatima vs. Rahman (5) (A. I. R. 1919 Lah. 262.), Kansi Ram vs. Jaimal Singh (6) (A. I. R. 1923 Lah. 590) and Butchiraju vs. Seetharamayya (7) (A. I. R. 1926 Mad. 377 ). It is urged by learned counsel for the appellant that Subbaraya Chetty vs. Nachiar Ammal (4) was not followed in Rangayya Naidu vs. Basana Simon (8) (A. I. R. 1926 Mad. 594. ). THE latter case was decided by a learned single Judge who held that the only course where the suit of the plaintiff was brought before the cause of action was to dismiss the suit with liberty to bring a fresh suit upon a proper cause of action. With all deference,, we are of opinion that the learned Judge went too far in saying what he did and in holding that under no circumstances could a court take into consideration events arising subsequently, to the suit and grant relief on that footing because in suitable cases the exercise of the exceptional power has been indeed well recognised and it will be too late in the day to hold otherwise. Similarly in a Sindh case D, the owner of certain machinery hypothecated it to P and afterwards sold it to M who had agreed to pay the money to P. THE latter sued for a declaration and injunction to protect his possession against M and in the alternative claimed his money which had not become due at the date of the suit but became due at the first hearing of the suit. THE court decreed the suit for money. Kimatrai vs. Mangharam (1) (A. I. R. 1943 Sind, 182. ).