K C NACHIMUTHU CHETTY Vs. ANDIAPPA PILLAI

JUDGEMENT

(1.) In this case the learned District Judge held that the suit as brought was not maintainable as the note sued on was one which offended against Section 26 of the Indian Paper Currency Act. That was clearly right: see Chidambaram Chettiar v. Ayyasami Thevan 36 Ind. Cas. 741: 40 M. 585: 31 M. L. J. 401: (1910) 2 M. W. N. 210: 4 L. W. 261: 20 M. L. T. 350.

(2.) But we consider that the District Judge should have allowed the plaintiff to amend his plaint as prayed and base his suit on the original cause of action in the circumstances of this case, as no objection was taken to the frame of the suit in the First Court. The questions as to whether the plaintiff s suit on the original cause of action would not be maintainable in whole or part, having reference to the observations in Shanmuganatha Chettiar v. Srinivasa Aiyar 35 Ind. Cas. 219: 31 M. L. J. 138: (1910) 2 M. W. N. 14: 4 L. W. 27: 20 M. L. T. 172: 40 M. 727. and in Chidambaram Chettiar v. Ayyasami Thevan 36 Ind. Cas. 741: 40 M. 585: 31 M. L. J. 401: (1910) 2 M. W. N. 210: 4 L. W. 261: 20 M. L. T. 350. and whether his suit will be barred by limitation, are questions to be decided by the Trial Court after evidence. We may observe that there is nothing in law to prevent a note offending against Section 26 being admitted in evidence as an acknowledgment.

(3.) We set aside the decree of the District Judge and remand the case to the First Court for fresh trial. Plaintiff will have leave to amend his plaint as advised in three weeks from the date of receipt of this order by the First Court.