UDARAM MAGNIRAM Vs. LAXMAN MARWARI

JUDGEMENT

(1.) THIS and the connected Civil Revision No. 181-B of 1925 have been filed under the following circumstances.

(2.) THE plaintiff filed a suit in the Small Cause Court on foot of a pronote dated 26-1-25 for Rs. 400, executed by the present appellant. That pronote was required according to the Amendment of the Stamp Act to be stamped with a 2 annas stamp, but through inadvertence or ignorance was stamped with one anna only. This defect in the stamp was noticed by the plaintiff at the time of filing the suit and he, therefore, inserted a clause in the plaint that it is likely to be held that the pronote is inadmissible in evidence and cannot serve as a basis for the suit and that he, therefore, claims to recover the money not on its basis as a contract containing an unconditional promise to pay, but in the alternative on the basis of the negotiations that preceded it, together with interest at Re. 1 p. c. p. m. The defendant naturally took the plea of the pronote not being admissible in evidence and raised the contention that plaintiff cannot also sue for money in the alternative. The trial Court as per its order dated 16-9-25 overruled this contention relying on Gokuldas v. Parmanand [1910] 6 N.L.R. 125 and proceeded to try the suit on its. merits and fixed 3-11-25 as the date for hearing evidence. In the meantime, the applicant filed Civil Revision No. 181-B of 1925 in this Court on 30-9-25 and obtained an order dated 3-10-25 for stay of proceedings which through oversight were described as execution proceedings. The lower Court thinking that in the absence of a decree capable of execution, there could be no stay of execution and proceeded to fix the case again for evidence for 4-12-25. The applicant though cognizant of the order dated 3-11-25 calling upon to adduce evidence summoned no witnesses for 4-12-25 nor did he take any steps early enough to obtain a proper order from this Court to stay further proceedings. He moved this Court just a couple of days before the date of hearing of the case in the lower Court for the appropriate order for stay and got it on

(3.) THE next contention is that the lower Court's order dated 11-9-25 is erroneous and against law and must be set aside in view of the decision of Madras High Court in Pothi Reddi v. Yelayudasivan [1887] 10 Mad. 94 followed in Mutha Shastrigal v. Vishwanath [1914) 33 Mad. 660, Somisundaram v. Krishnamurti [1907] 17 M.L.J. 126 and Chandasing v. Amritsar Banking Co. A.I.R. 1922 Lah. 307. On the other hand the non-applicant maintains that the order is correct as it has the authority not only of this Court's ruling in Gokuldas v. Parmanand [1910] 6 N.L.R. 125, but also of the High Court of Allahabad in Ramswarup v. Jasodha Kunwar [1927] 34 All. 158. On going through the conflicting decisions bearing on the point I am of opinion that the view taken by this Court in Gokuldas v. Paramanand [1910] 6 N.L.R. 125 is in more consonance with justice and equity than that taken in the Madras High Court which has waivered from time to time. I, therefore, hold that the plaintiff was rightly allowed by the Court below to fall back on the original transaction and to recover his money on its basis when it was found or conceded that the document or instrument which the applicant gave to the non-applicant was ineffective to establish any contractua1 relation of debtor and creditor between them so as to serve as a basis for a suit in a Court of law. The document styled as a pro-note remained incomplete so to say for want of insufficient stamp duty by the default of the applicant, it being his legal duty under Section 29 of the Stamp Act to pay the necessary stamp duty thereon. He cannot be allowed to profit by his own breach of a legal duty or derive any undue advantage by being permitted to swallow the money he got on the faith of such an invalid instrument.