DOMOO KHAN Vs. AGHA ARSHAD KHAN

JUDGEMENT

(1.) This matter was referred to this Court by a Division Bench consisting of Macpherson, J. and Agarwala, JJ., and in the circumstances we have seisin of and must decide the whole case. It is an application in revision against the decision of a small cause Court Judge for the plaintiff for a sum of money lent. A handnote had been given in the case which is inadmissible and it is said that the general question which comes to be determined is whether the learned Judge was right in fallowing parole evidence of what is said to be a written contract. In my opinion no such question can arise in this case by reason of the terms of the judgment itself. We have heard an elaborate argument and a large number of cases have been cited on this question but from any view of the law it is not denied, nor can it be, that the statement of Sir Richard Garth in the case of Sheik Akbar V/s. Sheikh Khan (1881) 7 Cal 256 holds good. The statement is as follows: When a cause of action for money is once complete in itself whether for goods sold, or for money lent, or for any other claim, and the debtor then gives a bill or note to the creditor for payment of the money at a future time, the creditor, if the bill or note is not paid at maturity, may always as a rule sue for the original consideration, provided that he has not endorsed or lost or parted with the bill or note.

(2.) Here the learned Judge has stated in the course of his judgment first "this is a suit on an oral contract" and later the factum of advance is a matter quite distinct from the terms of the handnote," and then the learned Judge appears to rely on certain authorities of this Court. Later he says: The plaintiff has proved that there was an independent contract to repay the advance. That being so, as I have already indicated, on any view of the law no objection can be taken to the judgment of the learned Judge. The question of whether the case of Dhaneswar Sahu V/s. Ramrup Gir AIR 1928 Pat 426 which was followed in the case of Abdul Muhammad Khan V/s. Mahananda Upadhyaya AIR 1931 Pat 293 was rightly decided does not arise. Any decision of this Court on that matter would be mere obiter.

(3.) The case of Dhaneswar Sahu V/s. Ramrup Gir AIR 1928 Pat 426 appears to proceed on the statement of the law which I have quoted from Sir Richard Garth's judgment. This disposes of the matter with the exception of one point. It was said by Mr. Khursaid Husnain, first, that the learned Judge had taken an erroneous view of the law and, secondly, that there was no evidence to support his finding of fact as to there being an independent contract.