MUNDAR BIBI Vs. BAIJNATH PRASAD

JUDGEMENT

(1.) This appeal arises out of the following circumstances. Baijnath Prasad, the plaintiff, sued the defendants in the Court of the Munsif of Allahabad in Suit No. 633 of 1916. In that suit he stated in the first paragraph of his plaint that the defendants, after borrowing Bs. 575 by means of a promissory note on the 26th of April 1916 at Allahabad, promised to pay on demand. The cause of Action arose at Allahabad on the 26th of April 1916, the date on which the promissory note was executed. The suit was dismissed under the provisions of Order IX, Rule 9 of the Civil Procedure Code, that is to say, the plaintiff did not appear and the defendants, who appeared, denied the claim. Subsequently the plaintiff applied to have the suit reinstated, but the application was dismissed on the 28th of April 1917 and an appeal from that order of dismissal was also rejected. Subsequently he brought this Suit No. 78 of 1918 is the same Court.

(2.) In the first paragraph of his plaint he stated as follow:-- "On Baisakh Badi 9th, Sambat 1973, corresponding to the 26th April 1916, the defendants borrowed at Allahabad from the plaintiff Rs. 575 bearing interest at the rate of Rs. 2 per cent, per mensem as per entries made in the account book, a copy of which is annexed hereto, and executed a promissory note in lieu thereof." Then after describing the failure of his first suit he proceeded to state in paragraph No. 4 as follows: No suit can be instituted on the basis of the said promissory note payable on demand. It is altogether null and void and ineffectual, but the plaintiff is entitled to realise the principal amount due to him in lieu of which the promissory note aforesaid was executed." The cause of Action for this suit arose on the 26th of April 1916.

(3.) From these recitals it is quite clear that what happened was this: The defendants asked the plaintiff for a loan The plaintiff agreed to give it on the defendants executing a promissory note for the said amount, and on execution of it the plaintiff gave the defendants the money. The defendants failed to re pay it. The defendants failed to repay it The plaintiff sued to recover the amount then due. The recital of the above facts constitutes the plaintiff s cause of action, which seems to us to be one and indivisible We do not see how the fact that the plaintiff recorded the transaction in his account book or private diary can give him another or a different cause of Action. The plaintiff sued to recover the amount due and his suit was dismissed. It was not dismissed because of any inherent defect in the promissory plaintiff failed to put in an appearance. Therefore, it is inaccurate to say, as was said by the plaintiff in paragraph No. 4 of his plaint, that the promissory note is altogether null and void and ineffectual. It is a perfectly good promissory note, and this is not one o those cases in which the Courts have held that where a promissory note is invalid and amounts really to nothing more than a piece of waste paper, the plaintiff can fall back upon an action for money had and received by the defendant to the plaintiff s use on the ground that there is a total failure of the consideration by reason of the invalidity of the promissory notes. It seems that what we have said above is really the law "Laid down in the case on which he learned Subordinate Judge relied, that is to say Baij Nath Das v. Salig Ram 16 Ind. Cas. 33. The facts of this case are distinguishable from the numerous cases which have been referred to in argument before us. The result is that we allow the appeal and setting aside the order of remand of the learned Subordinate Judge, restore the order of the Munsif with costs, including fees in this Court on the higher scale.