RAM NATH Vs. BHAGWATI PRASAD

JUDGEMENT

(1.) This is a plaintiff's second appeal against the decree of the learned Civil Judge of Mirzapur confirming the decree of the Court of first instance dismissing the suit with costs. The suit out of which this appeal arises was filed by the plaintiff for the recovery of Rs. 1000 principal and RS. 51 interest total Rs. 1051 from the defendants on the allegation that the latter borrowed Rs. 1000 from one Mt. Bitti on the basis of a promissory note dated 5 July 1937 and agreed to pay the loan with, interest at 12 annas per cent, per mensem on demand. The plaintiff's case was that Mt. Bitti (who is dead) assigned the debt due under the promissory note in favour of the plaintiff by making an endorsement on the back of it, on 8th December 1939. The defendants contested the suit on the grounds: (1) that the promissory note being improperly stamped was not admissible in evidence and the suit on its basis, therefore, could not be decreed; (2) that Mt. Bitti had not endorsed the promissory note in plaintiff's favour and the plaintiff was consequently not entitled to institute the suit; and (3) that no consideration passed so far as the alleged assignment in plaintiff's favour was concerned. It may be noted here that the defendants while contesting the claim admitted the execution of the promissory note in para. 5 of their written statement.

(2.) The Court of first instance found that the promissory note in suit was duly endorsed by Mt. Bitti in favour of the plaintiff, for consideration so the latter had a right to sue on its basis. It, however, came to the conclusion that the promissory note was not admissible in evidence under Section 35, Stamp Act, and consequently the suit to recover the loan on the basis of the promissory note could not be decreed. The Court of first instance, in taking this view, acted in accordance with the Full Bench decision of this Court in Nazir Khan V/s. Ram Mohan . In view of these findings, the Court of first instance dismissed the suit, but, in the circumstances of the case, directed the parties to bear their own costs.

(3.) On appeal, the learned Civil Judge affirmed the findings of the Court of first in stance. He held in effect that in view of the allegations in para. 1 of the plaint and also I of the statement of plaintiff's witness Deota Prasad to the effect that it was on the promissory note that Mt. Bitti had advanced Rs. 1000 to the defendants, no oral evidence was admissible to prove the transaction apart from the promissory note itself. The promissory note being inadmissible in evidence the suit as instituted could not be decreed. On the other point in the case, namely the validity of the assignment of the promissory note in favour of the plaintiff the lower appellate Court agreed with the Court of first instance in holding that the promissory note was duly assigned for consideration in favour of the plaintiff. In view of these findings, the appeal as well as the cross-objections were dismissed and the decree of the Court of first instance was affirmed.