GOPAL ROW GADEY RAM SAHEB Vs. VEERAPPEN SERVAIKARAN

JUDGEMENT

(1.) WHAT happened in this case was this. The plaintiff was entitled to some money from the defendant on settlement of accounts, and the defendant to secure the amount due executed the promissory note sued on. By a mistake of the writer the name of the plaintiff s father was written as the person in whose favour it was executed instead of the plaintiff s name. The plaintiff s father was dead and his name was inserted by mistake, the parties intending all the time that the plaintiff was to be the promisee. The Subordinate Judge has non suited the plaintiff on the ground that a suit for rectification of the promissory note must be first brought and the instrument rectified before he can institute the suit. A suit for rectification of documents is not cognisable by the Small Cause Court but I do not see the necessity for such a suit. The case of the plaintiff is that he is in fact the promisee and was intended to be touch but only his father s name has been entered by mistake as if it was his own name. Evidence can be given to show that there was such a mistake see Halsbury s Laws of England, Vol. II, page 473, Section 799; Jacobs v. Benson (1855) 63 Am. Decs. 609 and Wills v. Barrett (1816) 2 Starkies Rep. 29 and there is no reason why the Small Cause Court cannot receive such evidence. Section 87 of the Negotiable Instruments Act, 1881, also seems to confirm the view, because if a party to a negotiable instrument is entitled to make an alteration to carry out the common intention of the parties, it stands to reason that evidence can be adduced to show there has been a mistake. I do not think Subba Narayana Vathiar v. Ramaswamy Iyer (1906) I.L.R. 30 M. 88 decides anything to the contrary. Here what is sought to be proved is not that the parties intended that the benefit of the promissory note should accrue to a person not named in the instrument, but that by the promisee named in the promissory note, the real promisee was intended.

(2.) THE judgment of the Subordinate Judge is reversed and the suit will be remanded to him for trial on the merits. Costs will follow the result.