RAVJIBHAI NATHABHAI PATEL Vs. RANCHHOD RAGUNATH PATEL

JUDGEMENT

(1.) The facts of this appeal are stated in Ranchhod V/s. Ravjibhai (1925) 28 Bom. L.R. 631. This Court remanded the appeal for decision on the merits to the District Judge, and on remand, the District Judge held that the plaintiff could fall back on the original loan of Rs. 2,000 as the cause of action. He set aside the decree of the trial Court dismissing the suit, and decreed the claim which, he held, was not barred by limitation. The defend-ant appeals.

(2.) The two questions in appeal are, firstly, whether the respondent can be allowed to fall back on the loan as his original cause of action, notwithstanding the material alteration in the promissory note, and, if so, secondly, whether the claim is barred by limitation. Paragraph 2 of the plaint states as follows: the abovenamed defendant had borrowed Rs. 2,000 cash from the plaintiff No. 1, the guardian of plaintiff No. 2, in the month of Aso of Samvat 1974 (A.D. 1918) and the defendant in respect of this liability had executed a promissory note in favour of plaintiff 1 in Uttarsanda on the 5 of the first half of Aso of Samvat 1974, i.e., on October 10, 1918.

(3.) In paragraph 8 of the plaint the plaintiff referred to the alteration now in question and attempted to explain it on the ground, that money had really been advanced by the guardian from the moneys of the minor plaintiff No. 1, though by mistake the promissory note had been taken in the name of the grand-father. the plaintiff was not cross-examined to show any fraudulent intention. The lower appellate Court has found that repayment was made as it was professed to be made on July 10, 1920, sufficient bring the present suit in time, and that the alter- alternate apparently made in order to save limitation. In these circumstances, it must he held that though the alteration is on a material point, it is not proved to have been made with fraudulent intent but was made innocently.