CHANDRA KUMAR CHOWDHURY Vs. KALA MEAH

JUDGEMENT

(1.) THIS rule has been obtained by the plaintiff. He alleges that he advanced Rs. 149 to the mother of the defendants. She executed a promissory note in his favour. As the stamp was not defaced, it could not be admitted into evidence. The plaintiff now seeks to recover on the original transaction. The learned Judge delivered a curious judgment. At first he appears to be in favour of the case made by the plaintiff. He then veers round towards the defence. In the end he is unable to make up his mind one way or the other. He solves the difficulty by saying that the plaintiff cannot succeed on the original transaction because he relies on the hand note in his deposition. The contention of the plaintiff is that the suit should be retried. Mr. Chowdhury opposed the rule on two grounds. In the first place, he contended that no reliance was placed on the original transaction in the plaint. That document is certainly not very happily worded. It is, however, difficult to see why the parties bothered to go into evidence if this case was not made in the plaint. It is quite clear that this objection did not occur either to the Judge or to the parties at the trial. Paragraph 1 of the plaint definitely refers to the actual transaction and describes the promissory note as a receipt. There is no substance whatsoever in this objection.

(2.) THE second ground of opposition to the rule was that the suit is barred by limitation. It is not disputed that the suit is barred unless the plaintiff can rely upon Section 52, Bengal Agricultural Debtors Act. In the application under Section 8, the plaintiff referred to the promiassry note. Mr. Chowi dhury's contention is that limitation is saved only with regard to the suit on the note : hence the claim on "the original transaction is barred. Under the provisions of Section 52 the plaintiff may exclude (1) the period during which the debt in question is the subject-matter of any proceedings under the Act, and (2) the time during which the person interested in such debt was debarred by any provision of the Act from instituting the suit. In the present case there is not one debt on the handnote and another on the) original transaction; the debt is one. While the case on the handnote was pending before the Board the plaintiff could not institute an independent suit on the original transaction. Limitation is accordingly saved under the provisions of this section. THE rule is made absolute. THE decree of the lower Court dismissing the suit is set aside, and I direct that it be re-tried by some other Judge. By consent the re-trial will take place on the evidence already on the record, with such other evidence as either side may see fit to adduce. Costs in this rule will be costs in the suit, hearing-fee one gold mohur.