INDAR MAL Vs. JAGAN PRASAD

JUDGEMENT

(1.) THIS appeal arises out of a suit for money. The plaintiffs allege in their plaint that they had a shop, and that the defendants had another shop, and that money dealings had taken place for a long time between them, With their plaint they filed a copy of their books, so far as it related to their alleged dealings with the defendants, and from this it would appear that the transactions commenced about the 6th of July, 1908, and the 12th of March, 1909, when sums of money were advanced; that from these dates hundis were, from time to time, given and renewed. Assuming the entries to be correct, they show that hundis were given for the principal sum of Rs. 9,100; that when the time came for a renewal discount or interest was paid, and the hundis were renewed for the same principal amount. Jagan Prasad, defendant, met this by a denial of the plaintiffs right and by a special defence, contained in paragraph 12 of his written statement, in which he alleged that the hundis, which were alleged to be the last renewals by the plaintiffs, were in fact fictitious; and that the plaintiffs being short of money had asked them to draw these hundis upon them. In the court below the defence of the other defendants was more or less confined to a denial that Jagan Prasad had any right to take loans on behalf of the joint family. In the court below the books of the plaintiffs were produced and proved, and we have no doubt that the books are genuine. The last renewal of the hundis could not, however, be given in evidence on account of a deficiency in stamps. Notwithstanding this the court below has granted a decree to the plaintiffs for the amount claimed.

(2.) IT is now contended on behalf of the defendants appellants that the plaintiffs must be confined to their claim upon the last renewals of the hundis, and since these were insufficiently stamped, the suit must necessarily fail. IT was proved on behalf of the plaintiffs that the old notes were from time to time handed over to the defendants and were in their possession. We can see no reason why the plaintiffs could not fall back upon the hundis that were given prior to the last renewals. There was a change in the Stamp Act just about this time, which probably explains the deficiency in the stamp on the last renewals. We do not think that any good purpose would be served by sending back the case to the court below for more formal proof of the hundis before the last, We believe that they were in the possession of the defendants. They could not, having regard to the nature of the defence, have produced them, and the plaintiffs would be entitled to give secondary evidence of them. We think that secondary evidence was in fact given in the court below by the witnesses for the plaintiffs and by the proof and production of their books. Under all the circumstances of the case we think that the decree of the court below was correct and ought to be confirmed. We accordingly dismiss the appeal with costs.