Siadatali Khan, J. - (1.)THIS is a revision in a civil case. The learned Munsif of the Armoor Taluk, Nazamabad District, by order dated 31st October 1950 directed that the plaint should be amended. This revision is against that order. I have heard the arguments of the learned advocates of the parties and record my opinion, below.
(2.)THE plaint in its original form clearly stated that the defendant urged by necessity requested the plaintiff for a loan of Rs. 447/ -and the loan was advanced after a promissory note was executed on 12th May 1950. The amendment now sought is that no money was advanced on that date but that there was a course of dealings between the parties and that on the above -mentioned date, 12th May 1950 accounts were stated and checked and the promissory note was executed in respect of the balance that was found due from the defendant to the plaintiff. Question is whether the amendment in such circumstances allowed by the trial Court should be maintained or not.
The learned advocate for the revision petitioner relied strongly on 'Burjorji Jivanji v. Hormusji Nowroji', : AIR 1932 Bom 394 and on the Privy Council case of 'Ma Shwemya v. Maung Mo Hnaung', : AIR 1922 P C 249 and argued that it is quite clear from these cases that when the promissory note sued upon becomes inadmissible for want of stamp or for any other reason, the plaintiff cannot -be allowed to set up and establish another and independent contract altogether, as it would be travelling outside the provisions of the Evidence Act and Civil P. C. He emphasized that no doubt there have been cases in which the plaintiffs have been allowed on failure of an alleged contract embodied in a document to fall upon the original cause of action; but in all these cases the original cause of action was the same transaction and not a distinct transaction arising from a distinct cause of action; and he placed reliance upon 'Haji Syed Shapas And v. Bachu Bachi Rajappa',, 35 Deccan L R 368. He contended that in the case now under consideration the original transaction must be deemed to be the transaction of loan that took place on 12th May 1950; on the failure of the promissory note in which it was embodied, for want of requisite stamp, it may be that the plaintiff can be allowed to sue on the original transaction of loan but ha cannot set up all the previous transactions by which monies were advanced on different occasions on an account with the plaintiff's shop.

I am afraid the learned counsel has got all this wrong. The only question for consideration in such cases is whether there is a distinct and separate transaction and the promissory note was given as a collateral security. If it was given as a collateral security, then the distinct and separate transaction or transactions can be proved even though the written contract embodied in the promissory note becomes inadmissible by virtue of S. 91 of the Indian Evidence Act or S. 33 of the Indian Stamp Act. If authority is needed 35 Deccan L R 368 (F B) and 'Nazir Khan v. Rammohan Lal', : AIR 1931 All 183 (F B) may be seen. The single Bench case reported in : AIR 1932 Bom 394 and relied upon by the learned counsel was dissented from by a Division Bench in 'Sarafalli Mahomed Alli v. Mahasukhbhai Jechandbhai',, AIR 3933 Bom 476, where it was remarked that:

The cause of action on a promissory note is distinct from the cause of action on the loan which gives rise to the promissory note. But those two distinct causes of action can be set up in the same suit by the original plaint. Authority for that proposition, if needed, is to be found in 'Sadasuk Janki Pas v. Kishan Pershad',, AIR 1918 P C 146, where the proposition is stated by Lord Buckmaster who delivered the opinion of the "Privy Council. If two alternative and inconsistent claims can be combined originally in the plaint, there is no reason on principle why they should not be combined at a later stage by amendment. Whether in any particular case the amendment is asked for at too late a stage, or in circumstances which make it unfair to grant the leave, is another matter but as a mere proposition of law there is no reason why an amendment of this nature should not be allowed at the trial or even in appeal.

The learned Judges then proceeded to consider the Privy Council case of : AIR 1922 P C 249 and observed that:

that was a very different case. In that case the original suit was upon a contract made in 1912 and it was sought by amendment to base the cause of action on a totally different contract made in 1903. The whole subject -matter of dispute was sought to be changed....

As already stated, in the revision now under consideration, I have to decide whether the amendment allowed is correct or not. The learned counsel for the revision petitioner emphasized that the original cause of action should not be quite a distinct cause of action and if it should be quite a distinct cause of action it cannot be combined in the same suit and an amendment to combine it cannot be allowed. As already stated, the learned counsel is clearly under a mis -apprehension. To revert to original cause of action it should rather be quite a distinct cause of action arising independently from the cause of action embodied in the written contract whether it be a promissory note or any other written contract. This is evident from the Full Bench case of this Court in '35 Deccan L R 368' on which the learned counsel also relied. If I agree to his contention that the original cause of action should not be a distinct cause of action, then as the cause of action embodied in the promissory note on failure of the promissory note for want of stamp becomes entirely in -actionable, the party will not be able to fall back on the original cause of action. But if there is any separate transaction arising from a distinct cause of action contemporaneous with the promissory note or antecedent to it that cause of action can be relied upon & made the subject -matter of a suit. This is evident from page 378 of the Full Bench case of this Court referred to above. Hence I am of opinion that the amendment allowed by the order under revision can stand; for as alleged by the plaintiff the promissory note executed on 12th May 1950 was the result of a series of transactions antecedent to the promissory note thus forming a distinct cause or causes of action. Section 91, Indian Evidence Act will bar the proof of the contract embodied in the promissory note; but it cannot bar the series of transactions entered into before the promissory note, as professedly they were not embodied in the promissory note. Similarly, it is argued that for want of sufficient stamp the promissory note is inadmissible in evidence under S. 43 of the Indian Stamp Act; this again is confined to the cause of action contained in the promissory note and does not touch the distinct cause or causes of action arising from the series of transactions alleged to have taken place for years before the execution of the promissory note. Thus in my opinion there is no bar for the plaintiff to prove these series of transactions.

In the result I dismiss this revision and its costs will be the costs in the suit.