J.N. SAHANI Vs. STATE
LAWS(MPH)-1955-11-5
HIGH COURT OF MADHYA PRADESH
Decided on November 25,1955

J.N. Sahani Appellant
VERSUS
STATE Respondents

JUDGEMENT

Dixit, J. - (1.) THIS is a petition for a review of our decision in Civil Revision No. 29 of 1953. That revision petition arose out of a suit filed by the State of Madhya Bharat for the recovery of Rs. 1,85,000 together with interest thereon from the applicant on the basis of a promissory note. One of the grounds on which the Defendant -applicant resisted the suit was that the Court of District Judge, Gwalior where the suit had been instituted had no jurisdiction to try the suit because the Defendant resided and carried on business at Delhi and never undertook to pay the debt at Gwalior and that the whole transaction took place at Delhi where the promissory note was executed and delivered to the Finance Member of the Gwalior State. The learned District Judge held that the Plaintiff's suit was one for the recovery of the balance of the loan amount independent of the promissory note; that according to the rule that the debtor must seek the creditor, the moneys were payable at Gwalior; that the burden of proving that the Court had no jurisdiction to try the suit lay on the Defendant; and that ho had failed to prove that the payment of the loan was not made a Gwalior; that on the other hand the evidence showed that the loan was to be repaid at Gwalior and that, therefore, he had jurisdiction to try the suit. In revision we held that the suit as framed was founded on the promissory note itself; that the English Common Law rule that the debtor must find his creditor was not applicable to a promissory note payable on demand and which was not payable at a specified place; that where a promissory note was silent as to where money under it was payable, proof of any separate oral evidence as to the place of repayment could be given under proviso to Section 92, Evidence Act and that the onus of proving that the moneys were payable at a particular place was on the Plaintiff. As in the case the Plaintiff did not produce any evidence to prove the place of repayment on account of wrong placing of burden of proof by the trial judge, we set aside the decision of the Additional District Judge and directed him to determine the question of jurisdiction in the light of our opinion and after recording such evidence a the parties might produce to prove the place of payment of the promissory note.
(2.) IN this review petition Bakshi Mehtab Singh contended that at the time of the revision petition the question of there being any separate oral agreement as to the place of repayment of the money and of the admissibility of oral evidence o the question was not canvassed and that, therefore, this Court was not right in considering the question and remanding the case for recording the evidence of the parties as to the place of repayment. The burden of the argument of the learned Counsel was that the view taken by us that oral evidence was admissible to prove the place of repayment where a promissory note was silent on the point was not correct and that our reasoning in support of the view was inconsistent. In my opinion having regard to the principles, which are now firmly established, about the grounds on which a review petition can be entertained, this petition must be rejected. The suggestion that the question of the existence of a separate oral agreement as to the of the money and of the admissibility of oral evidence to prove the agreement was not raised and debated at the time of the hearing of the revision petition is altogether untenable. It is plain from paras 12 and 13 of our order in the revision petition that the question was specifically raised and learned Counsel for the Defendant -applicant vigorously argued and objected to the reception of the evidence on the ground that the words of the pro -note were free from ambiguity and did not create any doubt or difficulty as to their meaning and that, therefore, evidence 'de hors' the pro -note for the purpose of explaining it according to the intention of the parties as regards the place of payment was inadmissible. The view taken by us on the point way not be right but it is no ground for review that a judgment proceeds on an incorrect exposition of law. Learned Counsel for the applicant referred us to the decision of the Supreme Court in - Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius , AIR 1954 SC 526 V. 41 (A), where it has been held that a misconception by the Court of a concession made by the Advocate or of the attitude taken up by the party would be a ground analogous to the ground set forth in the first part of the review section and would afford a good and cogent ground for review. This decision has no applicability here. From what has been stated in paras 12 and 13 of our order in the revision petition it is obvious enough that the view we took about the admissibility of oral evidence to prove the place of payment was not based on any concession made by the learned Counsel for the applicant or on any misconception as to the arguments addressed by him before us in the revision petition. I would, therefore, reject this petition. Shinde, C.J.
(3.) I agree. Chaturvedi, J.;


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