RAM KIRPAL Vs. GAYA DAT

JUDGEMENT

(1.) THIS was a suit upon a promissory-note executed by the three defendants in favour of the plaintiff. The plaintiff very frankly stated in his plaint the circumstances under which this promissory-note came to be executed and the nature of the consideration therefor. The defendants seem to me to have induced the Court below to treat the case throughout as if the suit had been one for the recovery of money independently of the promissory note altogether. The real question in issue on the pleadings was simply whether in view of the circumstances of the case the consideration for which this promissory note was executed was unlawful under the provisions of Section 23 of the Indian Contract Act, IX of 1872. It appears that the defendants were tenants of the plaintiff. The tenant of an occupancy holding within the plaintiff s zemindari died, and the defendants took possession of the holding claiming a right to succeed as heirs of the deceased tenant under Section 22 of the Agra Tenancy Act (Local Act II of 1901). The plaintiff contested their right to do this by suing to eject them under the provisions of Section 58 of the same Act. That suit was pending and some evidence had been recorded when the defendants executed this promissory-note in favour of the plaintiff and the plaintiff in return for this acknowledged the status of the defendants as occupancy tenants and withdrew the suit for ejectment. It seems to me that nothing more took place than the compromising of a doubtful litigation and that the consideration for the pro-note was not in itself unlawful or opposed to public policy. The learned Judge of the Court below has confused the issue, making the whole case turn on the expression nazrana used in the plaint, but, the plaint itself makes it quite clear that the real consideration was the settlement of the pending litigation in favour of the defendants; for the plaintiff says that had this agreement not been come to, he would have contested the matter, if necessary, to the highest Court of appeal on the revenue side. I think the nature of the suit has been misconceived by the Court below and that the order dismissing the same cannot be upheld. I set aside the decree in this case and return the record to the Court below with orders that the suit be re-admitted on to the file of pending cases and disposed of according to law. Costs of this application will be costs in the suit.