RAMDAYAL Vs. MAJI DEORIJI OF RIYAN

JUDGEMENT

(1.) This is a first appeal by defedant Ramdayal. It came up before a Bench of this Court for hearing in August 1953, and two points were decided by judgment dtd. 7/8/1953 (a) See 1954 R.L.W. 157 for previous decision and it was ordered that the appeal fixed for hearingh on the remaining points in due courts. It is therefore not necessary for us to recapitulate the case of the parties. The judgment, dtd. 7/8/1953 (a) See 1954 R.L.W. 157 for previous decision may be considered part of this judgment which we are delivering today.

(2.) Briefly put the case of the plaintiff respondent was for recovery of a sum of Rs.10,000.00 from the defendant appellant. The suit was based on a balance of Rs.3000.00 which was said to be due to the plaintiff after settlement of accounts, and a sum of Rs.7000.00 which was further advanced in case. The main defence was that there had been a novation of contract, and therefore the plaintiff could not sue on the basis of the Khata Ex. P.1. This was the only issue which was framed in the trial court. When the case heard by this Court on the previous occasion, a further point was raised, namely, that the suit was premature. The question of novation was decided against the defendant, and though it was held that the suit was premature at the time it was filed, this Court took notice of events which took place after the filling of the suit, and allowed the suit to proceed.

(3.) Learned counsel for the appellant now urges two further points against the decree of the trial court. In the first place, it is contended that the suit is based on a mere acknowledgment, and in view of the decisions of this Court in Kanraj vs. Vijaisingh (1) and Hastimal vs. Shanker Dan (2) it must fail, as a mere acknowledgment cannot be the basis of the suit. In the second place, it is submitted that the acknowledgment in this case not having been stamped as required by Art, 1, schedule I of the Stamp Act is not admissible in evidence. Learned counsel takes the case out of the decision of this Court in Ratanlal vs. Dandas (3) on the ground that the admissibility of the document was disputed in the trial court, but the trial court did not frame any issue about it and did not decide it.