ADDANKI LAKSHMANACHARYULU Vs. MADDURI VENKATARAMANUJACHARYULU

JUDGEMENT

(1.) This is a suit for money brought by the plaintiff against the defendant, who are husbands of sisters. The first Court held that no such indebtedness was proved. On appeal to the Lower Appellate Court, the Subordinate Judge held that an amount of indebtedness was proved. There is one curious feature about this case, and that is, that the plaint sets forth the borrowings by the defendant of certain sums on specific dates and the only item with which we are concerned here is Rs. 800 stated in the plaint to have been borrowed on 28 January, 1916. The date given however in the additional issues framed by the District Munsif in the case is 28 November, 1916, and in the summary of the evidence the same date appears. This case is a very striking example of the great danger of employing figures instead of words in any kind of writing that really matters. It is all very well to do it at the top of letter-paper or things of that sort, though even so it may be that the date will become important, and the whole of this case hinges on the fact that 28 January, 1916, was written all in figures. In the learned Subordinate Judge's setting out of the case he also says "Rs. 800 on 28 January, 1916" and according to the learned vakil for the appellant this discrepancy was actually never discovered until after the conclusion of the case in the Lower Appellate Court. It seems almost incredible that the case should go through the Courts with the plaint alleging one date and the witnesses and the Judges setting out a different date. However, that is the fact, and I take it that the statement of the learned vakil for the appellant is accurate. A petition for review was taken to the learned Subordinate Judge while the admission of the second appeal was pending. That was refused on the ground, and it seems to me a substantial one, that it was on the basis of the plaint that the plaintiff went to trial and that the issue was decided and as foundation of his right to this sum of Rs. 800 he alleged a borrowing and lending on the 28th January, 1916. The question is, should this mistake, if it is one, be allowed to be corrected here in second appeal? Much stress has been laid on Muhammad Sadiq V/s. Abdul Majid (1911) I.L.R. 33 A 616 where the Court allowed the plaintiff to amend his plaint so as to claim 17 biswansi shares instead of 15 biswansi shares on the ground that the amendment is a correction in the description of the property. It was attempted to be argued here that the date was merely a description of the debt, but I am unable to accept this because if it were a mere description which could be corrected it is obvious that the sooner we get rid of the limitation law the better. It simply reduces that to futility. Another case relied on is Seshamma v. Chennappa (1897) I.L.R. 30 M 467. That was a case where the learned Judges in second appeal thought that as the plaintiffs had not been appointed executors by the will the plaint might be amended by substituting the adopted son as plaintiff with one of the present plaintiffs as next friend. The objection, it will be noticed, was taken by the District Judge himself and the learned Judge thought that the suit should not have been dismissed without giving the plaintiffs an opportunity to amend. It is perfectly clear there that the amendment was more or less. a formal matter. The executors had sued under the mistaken impression that they were executors by implication. The question was, how was the subject-matter of the suit to be preserved. It was really, as pointed out by the learned vakil for the respondents, a question under Order 1, Rule 10, Civil Procedure Code. I do not think either of the cases quoted is really authority for asking me to amend in this case, and, for this very strong reason, that if the amendment is allowed, the defence of limitation which succeeded in the Lower Appellate Court obviously falls to the ground and it is a cardinal maxim of the law of amendment not only that you should not amend so as to change the cause of action but you should not amend In such a way as will take away a valid defence under the law of limitation.On the merits it is very difficult to come to the conclusion that this is a mistake. As 1 have already said it was allowed to go through two Courts unchallenged and when the learned Subordinate Judge comes to give his decision on the next point in the case, i. e., whether this debt has been revived by acknowledgment, again the foundation is given as 28 January, 1916, with regard to this sum of Rs, 800. For all these reasons I am of opinion that it would be distinctly wrong to allow this amendment in second appeal.

(2.) The next point is, was the learned Subordinate Judge wrong in holding that Exs. B and C, two letters, did not amount to acknowledgment? He says that the acknowledgment is not specific and holds against the plaintiff for that reason. Neither of these acknowledgments so- called, Exs. B and C, is signed. They are at best initialled; I say " at best " because the translator of Ex. C has only been able to decipher the initial " M ". It is said that the words " I shall pay you Rs. 100" may be 1000. The original is most suspiciously and unfortunately blurred at exactly that figure. If it is 1000 it is said it must cover the Rs. 800. If it is 100 we dosnot know. It is simply an acknowledgment of liability. Various cases were quoted for the appellant under Section 19 of the Limitation Act, but on examination they will be found to be cases of open and current account and it is well known that an acknowledgment of indebtedness by one party who has any open and current account with another is much favoured in the law on this point. There is no open and current account between these two people.

(3.) There is a further question and that is whether, in spite of the provisions of Section 19, namely, that the acknowledgment has to be made in writing signed by the party, etc., initials will do. An old case Ammayee V/s. Yalumalai (1892) I.L.R. 15 M 261 was referred to. That was the case of a will and initials affixed by the attesting witness. It is said obiter that initials are equivalent to a signature to an acknowledgment under the Limitation Act though no such authority is quoted in the judgment; and this morning 1 have been referred to an English case of Lord St. John V/s. Boughton (1838) 9 Sim. 219. There it was held the acknowledgment of a debt in writing signed by a trustee or his agent is sufficient. The trustee owing to gout in the hand could not write and the letter was written by an amanuensis who concluded "For Thomas Townsend, Lt." It was sworn that the letter was written by Miss Laura Townsend, daughter of the trustee, according to her father's dictation and that it was signed by her in his presence. That makes all the difference. Here it is true that the plaintiff says that the whole of the letter Ex. C is in the handwriting of the defendant but he certainly does not say that he saw the defendant sign, nor has any evidence been offered to connect the defendant with the initials which appear in Ex. B but may or may not appear in Ex. C. Ex. B is in its contents vaguer than Ex. C and in my opinion the learned Subordinate Judge is right in saying that neither of these acknowledgments is specific, but 1 am prepared not only to stand on that but also on the point concerning the initials themselves. It seems to me therefore that the appeal fails on all grounds and must be dismissed with costs.