KUNJABEHARI CHAKRABARTY Vs. KRISHNADHONE MAJUMDAR

JUDGEMENT

(1.) This appeal is in a suit instituted by the appellant, Kunja, on 19 March 1938 in the First Court of the Subordinate Judge at Howrah to set aside on the ground of fraud a decree passed by this Court in its ordinary original jurisdiction. The question in this appeal is whether the suit is maintainable on the allegations made in the plaint and on the facts either admitted or conclusively proved. The respondent, Krishnadhan, brought Suit No. 1209 of 1930 against the appellant in the original side of this Court for recovery of the sum of Rs. 7068-9-6 due on a promissory note said to have been executed at Calcutta on 30 June 1927 by the latter in his favour. The promissory note was filed with the plaint but was taken back by his Solicitors, Messrs. O.C. Ganguly & Co., after keeping on the record an authenticated copy. At the time of the hearing of the suit the original promissory note was not before the Court. After entering appearance in that suit the appellant asked the respondents solicitors to give him inspection of the original promissory note. That request was not complied with, the said solicitor taking up the position that it had been mislaid is his office after it had been taken back by him from Court. The appellant eventually filed & Chamber application in December 1930, in which he brought to the notice of the Court the fact that he could not get inspection of the original promissory note. He asked for an order on the respondent to produce it for inspection within a definite time and for dismissal of the suit in case it was not produced within the time limited by the Court. This application was moved on the basis of an affidavit affirmed by him on 16th December 1930.

(2.) Probodh Chandra Ghose, the court clerk and Birendra Coomar Ganguly, the cashier and record keeper of the respondent's solicitors filed a joint affidavit in answer on 18 December 1930. In that affidavit, the former stated that the original promissory note had been filed with the plaint before the Master and that in the usual course of practice it was taken back and kept in an almirah in the Solicitor's office. The latter affirmed that he himself had kept it there in the course of his duty. They both affirmed that since the requisitions for inspection from the appellant they had been making diligent searches for it but without success. In answer to this affidavit the appellant filed another affidavit affirmed by him on 5 January 1931. In it he made a definite case that the promissory note wag a forged one and that it was being suppressed by the respondent to prevent detection of the forgery on the false plea that it was missing. On these materials the Chamber application was moved on 13 January 1931. A consent order was passed on that date. The prayers for production of the promissory note and for the dismissal of the suit in case it was not produced were not allowed, on the respondent undertaking to file an affidavit swearing to its loss and to file his account books which were then in the custody of the Criminal Court at Howrah. The respondent fulfilled these undertakings later on. The appellant having got leave to defend the suit filed his written statement on 24 February 1931. He denied having executed the promissory note and suggested that it and another document, a letter evidencing deposit of title deeds marked later on as Ex. N in that suit, had bean forged on two blank sheets of paper containing his signature, such papers having in the past been delivered by him to the respondent for being used in legal proceedings.

(3.) At the trial before Ameer, Ali J., the appellant pressed his case that the suit had been brought on a forged promissory note, and for supporting the said case contended that the original promissory note had been fraudulently suppressed. Evidence was led by respondent to meet the last mentioned contention, He examined Probodh Chandra Ghose, Birendra Coomar Ganguly and Mr. Ordhendu Coomar Ganguly, a partner of Messrs. O.C. Ganguly & Co., to prove that the original promissory note had not been suppressed but had in fact been lost from the Solicitor's office after it had been filed with the plaint and taken back from Court. In support of his case of forgery the appellant examined himself, Becharam Chatterjee and Tridev Chandra Chatterjee. They said that on the date of the promissory note in question the appellant was at Benares where he stayed up to 30 June 1927 and returned to Howrah in July 1927. Tridev produced his diary in support of his testimony. This diary was marked an exhibit in the case. On those materials and on others including the letter Ex. N Ameer Ali J. decreed the suit on 17 August 1933. In decreeing the suit he took into consideration Kunja's case of the alleged suppression by Krishnadhan of the original promissory note.