MUNNALURI NARAYANAMOORTI Vs. DWADASI VUMAMAKESWARAM

JUDGEMENT

(1.) This second appeal is against the decision of the lower Appellate Court in the matter of a promissory note claim. The promissory note dated the 9 June, 1920, was executed by the 1 defendant in favour of the 1 plaintiff on behalf of the joint family of which he was the manager. In a partition suit decree, this promissory note was allotted to the share of one Balakrishnayya, although the promissory note appears to have remained with the 1 plaintiff. On the 14 September, 1922, Balakrishnayya executed a release deed relinquishing his rights in the suit note in favour of both the plaintiffs. Both the plaintiffs filed this suit to recover the full amount due upon the note. The defence was a discharge to Balakrishayya partly by cash and partly by execution of another promissory note. The trial Court held that the payment pleaded by the defendants was true but that it was not binding on the plaintiffs. The lower Appellate Court agreed in holding that the payment was true but held further that the plaintiffs had no title to sue, not being holders in due course. It, therefore, dismissed the suit and the plaintiffs appeal.

(2.) The first contention urged by them is that as the promissory note is the name of the 1st plaintiff and has not been endorsed by him to anyone else, he is the holder and entitled to recover from the defendants. This to my mind is entirely a new case set up here for the first time. It may be a good case or a bad case, but the defendants have never been given an opportunity of meeting it. It is argued that this is a pure question of law but clearly that is not so. I cannot speculate as to what would have been the defendants defence if the 1 plaintiff alone had sued upon the note. Attempts to raise in second appeal points which are not even in the pleadings and which the other side has never been called upon to meet are not to be lightly permitted in second appeal. The Privy Council has lately condemned such a practice: "It appears to their Lordships to be highly irregular for any Court either to assume without the admission of all parties that material facts are not in dispute or to proceed to draw inferences from those facts where no evidence of them has been placed before the Court." James Richard Rennel Skinner V/s. Naunihal Singh 117 Ind. Cas. 22 : (1929) M.W.N. 676 at p. 680 : A.I.R. 1929 P.C. 158 : 33 C.W.N. 761 : 31 Bom. L.R. 854 : (1929) A.L.J. 566 : 30 L.W. 76 : 50 C.L.J. 74 : 51 A. 367 (P.C.).

(3.) That this present contention is a new case is clear from a perusal of the pleadings and the judgment of the Courts. There is no hint in the plaint that the 1 plaintiff has any cause of action apart from that of the 2nd plaintiff. The manner in which the plaintiffs became absolute hukdars of the promissory note is stated in para. 6 to be the release deed. The only prayer in the plaint is to pay the suit amount to both the plaintiffs. There is no issue whatever on this present point and the frame of the only issue shows that it was never raised. The only issue is, "whether the discharge set up by the defendants is true and binding on the plaintiffs?" If there had been any case that the 1 plaintiff alone was entitled to sue as holder, the plea of discharge to some one else who never was holder was irrelevant and could not have arisen. A perusal of the judgments of both Courts shows also that the present contention was never raised there, and neither Court has given any finding which can remotely be related to such a contention. I, therefore, refuse to allow this contention to be raised at ? this state.