RAGHUBAR DAYAL Vs. BANWARI LAL

JUDGEMENT

(1.) This is an application for the revision of an order of the Judge of the Small Cause Court of Pilibhit, decreeing the plaintiff's claim which was based on a promissory note. The defence was that the defendant had executed on different dates two promissory notes in the plaintiff's favour out of which was the one in suit, but that there had been an agreement between the parties on 8 November 1929 by which the plaintiff agreed to accept Rs. 700 as the amount due to him on both the promissory notes, and of this amount the defendant claimed to have paid all but Rs. 150. Apart from this the defence was also raised that the claim on the promissory note in suit was barred by limitation. The finding of the Court below amounts to this, that there was no compromise between the parties on 8th November 1929, and that the plea of limitation had been met by the proof of an acknowledgment of indebtedness contained in a written statement filed by the defendant in a suit on the other promissory note. The first point taken in argument before me was that the present suit was barred by the provisions of Clause (2), Order 2, Rule 2, Civil P.C. The argument is to the effect that the plaintiff might have sued in the other suit for the consolidated sum due on account of both promissory notes, and that as he had then only sued on one, he was not now entitled to sue on the other. It will be observed that this argument depends on proof of the alleged compromise of 8 November 1929, and if it be held that there was no such compromise the argument based on Order 2, Rule 2 has no meaning, because the position then is that the plaintiff is the owner of the two promissory notes, each of which may form the basis of a separate action.

(2.) As regards this alleged compromise in revision of the original contract, the Court has not said in so many words that it has not been proved in the present suit, but it is clear enough that that is the meaning of the whole of the judgment. The Judge has remarked: The alleged contract having been hold not to have been established, the plaintiff can fall back on the original promissory note.

(3.) The documentary evidence in favour of the existence of the contract is said to have been two receipts, and the history of these receipts is given at the end of the judgment of the trial Court. The originals were filed in Court, and the Court believing them to have been forged directed the prosecution of the defendant. The defendant however succeeded in obtaining the originals back and filed certified copies in their place, and consequently it is a certified copy which is on the file of the present suit. Now, this certified copy on which the defendant relies to prove alleged contract is obviously not a copy of a deed of agreement or a bond, but it is merely a copy of a receipt executed on a one-anna stamp, and this receipt has been held by the Court to be a forgery. Consequently it cannot be held that the Court below was wrong in holding that the contract had not been proved.