PARAMANANDA PATNAIK Vs. GOLAKBEHARI DAS AND ANR.

JUDGEMENT

(1.) THIS is the Plaintiff's application in revision against an order of the learned Munsif of Athgarh refusing amendment of the plaint.

(2.) THE material facts are shortly these: The Defendant No. 1 executed in favour of the Plaintiff a hand note dated June 23, 1953 for a sum of Rs. 60/ - with interest payable thereon as mentioned in the hand note. It appears that there was a part -payment on February 15, 1956. The suit was filed on June 23, 1956. On November 9, 1956 the Defendant No. l filed a written statement taking the defence that the hand note was insufficiently stamped with the consequence that it was not admissible in evidence. Thereafter on January 22, 1957 the Plaintiff made an application for amendment of the plaint. The purport of the amendment was to' base his claim on the original consideration and not on the handnote. On February 7, 1957 the learned Munsif dismissed the application for amendment on the ground that it would change the nature of the suit and was inconsistent with the claim originally made in the plaint. The present revision is directed against the said order of the learned Munsif.

(3.) MR . G.K. Misra, learned Counsel for the Defendant, with his usual clarity of exposition, tried to distinguish the applicability of these decisions on certain principles which indeed deserve consideration. He contended that the desired amendment was useless and had no substance and was unnecessary. He further contended that assuming such amendment was allowed, the suit was bound to fail. His main proposition was that by reason of the hand note having been insufficiently stamped, it was not admissible in evidence for any purpose under Section 35 of the Stamp Act and further that even impounding would not cure the alleged defect in the hand note. He went to the length of saying that the hand note in suit could not admitted in evidence even for collateral purpose. In this context the learned Counsel relied on a decision of the Privy Council in Ram Rattan v. Parma Nand : A.I.R. 1946 P.C. 51 where their Lordships of the Privy Council on a construction of the words 'for any purpose' in Section 35 of the Stamp Act observed that the said words should be given their natural meaning and effect and would include a collateral purpose and that where an unstamped document is admitted in proof of some collateral matter it is certainly admitted in evidence for that purpose which the statute has prohibited. Consequently an unstamped partition deed cannot be sued to corroborate the oral evidence for the purpose of determining even the factum of partition s distinct from its terms. In the present case I do not make any comments on the admissibility of the document in question which is for the trial Court to decide. My attention was also drawn to Section 91 of the Evidence Act on the question of admissibility of the document in evidence. Then the learned Counsel referred to several decisions of different High Courts by way of distinguishing the cases cited by Mr. H. Kanungo, the learned Counsel appearing for the Petitioner. Before I proceed to deal with these decisions, the ratio decidendi on which these decisions rested was a decision of Chief Justice Garth in Sheikh Akbar v. Sheikh Khan, I.L.R. Cal 256 where a distinction was made between two positions in Law, namely, (1) when a cause of action for money is complete in itself, whether for goods sold or for money lent, or for any other claim and the debtor then gives a bill or note to the creditor for payment or the money at a future time, the creditor if the bill or note is not paid at maturity, may always as a rule, sue for the original consideration and (2) when the original cause of action is the bill or note itself, and does not exist independently of it, in such a case the note is the only contract between the parties and if for want of a proper stamp or some other reason the note is not admissible in evidence, the creditor must lose his money.