APURBA KRISHNA MITRA Vs. RAM BAHADUR

JUDGEMENT

(1.) This is an appeal by the plaintiff who has obtained a decree against the respondents in a suit based on a hand note executed by all the four defendants to the suit for a sum of Rs. 5,680 payable with interest at 12 percent per annum. The plaintiff has obtained a decree for principal and interest up to the date of the suit and thereafter interest from the date of the decree on the entire decretal amount at the rate of six per cent per annum. The lower Court has not either intentionally or by an oversight allowed any interest pendente lite on the principal sum. The plaintiff has appealed and the only question involved is whether interest pendente lite should be allowed. The appeal, has been valued at Rs. 567 being the interest at one per cent. per annum on the principal sum of Rs. 5,680 for the period of the pendency of the suit. In the plaint as it stands the plaintiff appears to have asked for interest pendente lite at the rate of six per cent. per annum. There is however an application filed in this Court on his behalf stating that there has occurred an accidental mistake in the plaint the typist omitting to copy one full line of the draft, and there is a prayer for the amendment of the plaint. The prayer portion in the draft plaint which has been filed runs thus: That a decree for Rs. 6,848-4-6 for principal and interest up to date besides interest pendente lite at the rate of Rs. 12 per cent per annum and costs of this suit and interest at the rate of Rs. 6 per cent per annum.

(2.) In the plaint, as it was filed, the words "at the rate of Rs. 12 per cent per annum and costs of this suit and interest" do not occur and are said to have been omitted by mistake with the result that it now reads: That a decree for Rs. 6,848-4-6 the principal and interest up to date besides interest pendente lite at the rate of Rs. 6 per cent per annum.

(3.) Most likely there has been a mistake in the typing of the plaint. The plaintiff could not have asked for a lower rate of interest himself. Apart from this interest pendente lite can be granted without the plaintiff's asking for it. Had we thought that interference is justified and the plaintiff is entitled to interest pendente lite at the stipulated rate, we would have ordered the amendment of the plaint or allowed interest at that rate without amending it. Before I come to the merits of the appeal it is necessary to mention that when this case was taken up by us on the 7 instant the learned Advocate for the respondents, Mr. Rai Tribhuvan Nath Sahay, filed an affidavit to the effect that one of the respondents Parmeshwar had died on the 17 July last and contended that no substitution of his representative having been made till then the appeal had abated. He further urged that at any rate under the circumstances it would be improper to amend the plaint or modify the decree against the remaining respondents. Mr. Manohar Lal, on behalf of the appellant asked us to give him two days adjournment in order to enable him to ascertain about the death of Parmeshwar. When the case was taken up to day Mr. Manohar Lal informed us that Parmeshwar had in fact died in July last though the actual date of his death could not be ascertained. He asked us to adjourn the case further to enable the appellant to apply for setting aside the abatement of the appeal at any rate against the deceased respondent. We refused to adjourn the case for this purpose. An application for setting aside the abatement has become barred by limitation and cannot be entertained unless sufficient reason be shown under Section 5, Lim. Act. Both the parties are residents of Muzaffarpur and it is difficult to imagine that the death of Parmeshwar who was a judgment-debtor of the appellant and against whom he was vigorously prosecuting this appeal, remained unknown to him so long. Apart from this, there was plenty of time for the plaintiff between the 7 of this month till now to file an application for substitution if he cared to do so.