Sarkar, J. - (1.) This is an application for amendment of the plaint. The suit is on a dishonoured cheque. The plaint did not state that any notice of dishonour has been given or that any circumstances existed which rendered it unnecessary to give such notice. The plaintiff now seeks to introduce these statements in the plaint by an amendment. The application is opposed by the defendants on the ground that by reason of the absence of these allegations the plaint as it stands now discloses no cause of action and hence it must be rejected under Order 7, Rule 11 (a), Civil P. C. and the Court has no power to allow the amendment. The defendants rely on the judgment of Gentle J. in Sailesh Nath v. J. Chaudhury, 50 C. W. N. 540 which directly supports their contention.
(2.) The plaintiff's answer is two fold : First the plaint discloses a cause of action in spite of the omission to state anything with regard to the notice of dishonour and secondly that Order 7, Rule 11, does not take away the Court's power to order amendment of the plaint and that Gentle J. was wrong.
(3.) With regard to the first point the plaintiff's contention is that the facts relating to the notice of dishonour are not part of the cause of action on a dishonoured cheque but are mere conditions precedent necessary for the case on the cheque, the performance or occurrence of which is to be implied in the plaint under Order 6, Rule 6 of the Code. I am unable to accept this contention. A cause of action is that bundle of facts which would, if left to itself, create in law a right or obligation, while a condition precedent is something which prevents the right or obligation which would have otherwise sprung out from those facts from springing out. A condition precedent has thus been described in the notes to Order 19, Rule 14 in the White Book : "Cases constantly occur in which, although everything has happened which would at common law prima facie entitle a man to a certain sum of money, or vest in him a certain light of action there is yet something more which must be done or something more which must happen in the particular case before he is entitled to sue either by reason of the provisions of some statute, or because the parties have expressly so agreed; this something more is called a condition precedent. It is not of the essence of such a cause of action, but it has been made essential. It is an additional formality superimposed on the common law." I would in the above quotation add to the words "common law" the words "or statute." How the liability of the drawer of a cheque arises under Section 30, Negotiable Instruments Act, and except as laid down in that section the drawer of a dishonoured cheque has no liability. This is because the whole law as to cheques is contained in that Act and the only section dealing with the liability of the drawer of a cheque is Section 30. The section provides that the drawer of a cheque shall be liable to compensate the holder in case of dishonour "provided due notice of dishonour has been given to, or received by, the drawer as hereinafter provided." Sections 91 to 98 of the Act lay down the provisions relating to the manner of the giving of the notice of dishonour and the cases where the giving of the notice is excused. The only way therefore in which liability on a cheque may arise is when (1) the cheque is dishonoured and (2) notice of such dishonour has been given or circumstances exist which render it unnecessary to give such notice. It is not a case where if no provisions as to notice of dishonour had been laid down, a right would have arisen in the holder on the dishonour of the cheque and where the only effect of those provisions is to prevent such right from springing up. The notice of dishonour as the law as to cheques stands is a part of the cause of action on a dishonoured cheque. In Fruhauf v. Grosvenor & Co., (1892) 67 I. T. 350 : (61 L. J. Q. B. 717), Lord Coleridge C. J., expressed himself in these words : "The obligation upon the drawer of a cheque to pay does not arise until notice of dishonour thereof has been given to him, and therefore the statement of the case against the defendant here is not full and complete without either an allegation of notice of dishonour of the cheque having been given to the defendant the drawer of it, or of facts excusing the plaintiff from giving such notice." It was decided in this case that in the absence of the allegations as to the notice of dishonour, the plaint on a dishonoured cheque would not disclose a cause of action. Mr. Meyer appearing for the applicant baa referred me to the case of Krishna Prosad v. Adya Nath, A. I. R. (31) 1944 Pat. 77 : (22 Pat. 513) as an authority foe the contrary proposition. There a notice of forfeiture of a lease under Section 111 (g), T. P. Act seems to have been held to be a condition precedent. With great respect I am unable to agree if such was the decision. The learned Judges give no reasons for their view Since the Transfer of Property Act came into force the determination of a lease by forfeiture can only arise under Section 111(g) of that Act and under this section there is no forfeiture till the notice is given so that the giving of the notice creates the forfeiture which does not exist independently of it and is therefore a part of the cause of action on forfeiture and not merely a condition precedent to it. Further the decision of this point was not necessary for the case for the learned Judges held that Section 111(g) as amended in 1929, which amendment introduced the requirement as to the notice, did not apply to the case before them. As is well known prior to the amendment the section required, besides the breach, an overt act on the part of the lessor to show his intention to determine the lease. The amendment omitted the provision as to the overt act and replaced it by the provision as to notice. The learned Judges applying the section as it stood before the amendment to the case before them held that the language used in para. 15 of the plaint contained a "'clear implication" that the overt act had been done. This shows that the learned Judges treated the overt act as a part of the cause of action and not a condition precedent for, if it was the latter there would then have been no necessity to spell out an implication as to it out of something in the plaint for such implication would have arisen under Order 6, Rule 6 of the Code itself. If the overt act was part of the cause of action I wholly fail to see how the notice which replaced it could be otherwise. The plaintiff's first point therefore fails.;