Patna High Court
Rampadarath Thakur vs Hari Narain Prasad And Anr. on 18 December, 1964
Equivalent citations: AIR 1965 PATNA 224
JUDGMENT K. Ahmad, J.
1. The suit which has given rise to this appeal was instituted by the plaintiffs who are respondents here, on the 11th January, 1958, for recovery of the principal amount of Rs. 1,375 along with Rs. 495 as interest, at 12 per cent. per annum, on the basis of a handnote, prima facie, dated the 11th January, 1955. It is not denied that the handnote was executed by the defendant in favour of the plaintiffs; but according to the defendant, it was executed on the 1st January, 1955, and not on the 11th January, 1955. Further, it has also been pleaded by the defendant that the original date of the handnote which was "1-1-1955" has been altered by the plaintiffs to "11-1-1955" with a view to save limitation, as on the 11th January, 1958, when the suit was brought, the handnote, as it originally stood, was barred by time. Then there is also the defence taken that the handnote was executed in lieu of certain outstanding dues of plaintiff No. 2 against him. In the plaint, however, the claim was based exclusively on the footing that the handnote was not barred by time and, therefore, there was no averment made therein as to any case of acknowledgment Now, both the Courts below have concurrently found that there has been a change made in the date which was originally put in the handnote and that the original date was 1-1-1955. In other words, both of them are in agreement on the point that the change in date of the handnote from "1-1-1955" to "11-1-1955" is a subsequent alteration brought about by the plaintiffs. On this finding, the trial Court took the view, firstly, that this alteration was material and, therefore, the hand-note was void and no relief could be granted thereunder to the plaintiffs and, secondly, that on the very fact of it, in the absence of any pleading of acknowledgment in the plaint, the suit as instituted was barred by time. Thereafter the suit was twice remanded by lower appellate Court.
2. The first remand was made in M A. No. 4 of 1960 with a direction to the trial Court to find out whether the claim under the handnote, though prima facie barred by time, could be saved by any subsequent acknowledgment made in respect thereof and then to decide the ease in the light of the finding given on the point. There was also a further observation made in the order of remand that in case the period of limitation under the hand-note was found to have been extended as a result of any acknowledgment made in respect thereof, then the alteration made in the date of the hand-note could not amount to any material alteration. The trial Court after remand again dismissed the suit holding that the handnote in question was a forged document and hence it could not be enforced.
Further, it also took the view that the change in the date of the handnote was brought about will) the definite design to avoid the period of mutation and as the plaintiffs failed to come for ward with any case of acknowledgment made in respect of it, they were not entitled to any decree on the basis of such a document. That led to M. A. No. 24 of 1961. But therein the case was again remanded to the trial Court by the order dated the 11th May, 1962, with certain directions as given in the judgment. But the trial Court again dismissed the suit. The exact finding given by it after this second remand was that:
"I, therefore, find that the suit is barred by limitation as the handnote is really dated 1-1-1955, and it has been changed into 11-1-1955. Hence, the suit is barred by limitation. I may add here that there are various authorities for the proposition that if there be alteration in the date of a handnote, which tantamounts to material alteration and a Court of justice cannot give relief to a party if he comes to Court with false handnote with " material alteration in the date. Hence, in consideration of the evidence and as directed by the appellate Court, I hold that there has not been any acknowledgment and the suit is barred by limitation."
This led to M. A. No. 31/9 of 1962-63 which was disposed of by the order dated the 18th July, 1963. This time the judgment of the trial Court has been reversed by the lower appellate Court and the substantial findings given by it are that there was an acknowledgment subsequently made in respect of the claim under the handnote and that the alteration, even if any made therein, was not material. In the opinion of the lower appellate Court, the statements made by the defendant in the two zarpeshgi deeds [Exs. 5(a) and 5(b)] read along with the written statement filed by him in this case on the 14th June, 1958, and the evidence deposed to by him in support thereof on the 25th May, 1960, constituted a clear case of acknowledgment. On the question of the nature of alteration, the exact finding given by the Court below is in these words:
"The foregoing made the position clear that despite the fact that there has been, an alteration made by the plaintiffs in the date as given in Exs. 1 and 4, the same cannot amount to a material alteration, within the meaning of Section 87 of the Negotiable Instruments Act so as to make the handnote void because, the acknowledgments as contained in Exs. 5 and 5(a) give the plaintiffs a fresh start of the period of limitation to be counted from the date of their execution, i.e., 31-12-1957 which has been wrongly construed by the learned Munsif to be 2-1-1958."
The defendant, therefore, has now come in second appeal to this Court.
3. The finding given by the two Courts below that the original date on the handnote was "1-1-1955" and that it has been subsequently altered to "11-1-1955" has not been challenged before me. Further, it being a finding of fact, it is now concluded in second appeal. Thus, the submission made in this appeal is confined to two points, viz., one relating to the case of acknowledgment and the other as to whether the alteration made is material or not. In my opinion, on the facts of this case and in view of the law as laid down by the Privy Council in Nathu Lal v. Mt. Gomti Kuer, 67 Ind App 318: (AIR 1940 PC 160) as also held in Govindasami v. Kuppusami, ILR 12 Mad 239 and Namdev Jayram v. Swadeshi Vyapari Mandali Ltd., 28 Bom LR 944: (AIR 1926 Bom 491), there is no escape from the conclusion that the alteration made in the handnote as found by both the Courts below is a material alteration within the meaning of Section 87 of the Negotiable Instruments Act. Dealing with this question, their Lordships of the Privy Council in the aforesaid decision 67 Ind App 318 at p. 333: (AIR 1940 PC 160 at p. 165) have observed that "A material alteration has been defined in the rule as one which varies the rights, liabilities or legal position of the parties ascertained by the deed, etc." Judged, therefore, from this point of view, can it be said on the facts of the present case that the alteration made in the date of the handnote in suit has not in any way varied the rights, liabilities or legal position of the parties ascertained thereby ? In my opinion, the answer has to be on the facts of this case, given in the negative.
The claim as originally made in the plaint was founded purely on the basis of the handnote and on the assumption that the handnote as it then stood was not barred by time, without making out in the plaint any case of acknowledgment. That being so, the claim made on the basis of the hard-note alone had to be held as barred by time if the date thereon was to be taken as "1-1-1955" and not "11-1-1955". Obviously, therefore, the alteration made in the date of the handnote from "1-1-1955" to "11-1-1955" was done with a view to save the claim made thereunder from limitation. Thus, the very purpose of the alteration was nothing but to vary the rights, liabilities or legal position of the parties ascertainable by the handnote. It should have been a different matter if the claim made in the plaint had been founded on the footing that though the handnote was barred by time but the limitation for enforcing the claim thereunder was saved by acknowledgment. In that case, it could have been validly argued that in view of the admitted position that the claim as made under the handnote was barred by time and that the same was saved only by acknowledgment, the alteration, even if any, effected in the date of the handnote was not made with a view to vary the rights, liabilities or the legal position of the parties thereunder.
But in the present case, as already stated above, the claim made out in the plaint was based exclusively on the footing that the handnote, as it stood on the date of the institution of the suit, was not barred by time and, therefore, there was no case of any acknowledgment made out therein. In fact, even Mr. Prem Lall appearing for the plaintiffs-respondents has conceded that in the absence of any case of acknowledgment, the alteration made in the date of the handnote in the present case could not but be a material alteration. Learned Counsel, however, has submitted that in view of the fact that the limitation of the claim is saved by acknowledgment, the alteration made in the date of the handnote in this case cannot be said to be material. That, in my opinion, is begging the question, viz., whether the claim made in the plaint was at all based on the footing that the hand-note was barred by time and the claim made thereunder was saved only by acknowledgment. In (ILR 12 Mad 239), the learned Judges who decided that case while dealing with this very point observed as follows:
"In order to decide whether the alteration was material, it is necessary to consider whether the alteration affected the liability of either party. There can, it appears to us, be no doubt that the alteration of the date of the document from the 11th to the 25th September, materially affected the liability of the defendant, for it extended the time within which the plaintiff was entitled to sue."
To the same effect is the view expressed in 28 Bom LR 944: (AIR 1926 Bom 491); and therein also it has been laid down that an unauthorised alteration In the date of a surety-bond by a person in whose favour it is passed Is a material alteration and avoids the document. Thus, in my opinion; on the facts of the present case, the alteration made in the handnote has to be held as material and as such the handnote is void within the meaning of Section 87 of the Negotiable Instruments Act. No decree, therefore, can be passed in favour of the; plaintiffs on the basis of such a void document, And if that is so, the question of acknowledgment becomes more or less academic. In view, however, of the fact that an elaborate argument has been advanced by both the sides on this point, I would like to deal with that point too though not in any detail.
4. In that connection, the first question that arises for consideration is whether in the absence of any averment made in the plaint in regard to acknowledgment, could any evidence be given in support thereof P Mr. Prem Lall appearing for the plaintiffs-respondents concedes that there was no such case made out in the plaint. In fact, even the zarpeshgi deeds [Exs. 5 and 5(a)], on the basis of which the case of acknowledgment has now been set up, was originally not filed at the trial. It was only when the case was remanded on the first occasion by the Court below to the trial Court that the plaintiffs thought it advisable to file these documents. Therefore, prima facie, the case is fully attracted by the law as laid down in Mukh Narain Singh v. Ramlochan Tiwari, AIR 1941 Pat 147; Gulam Hussain v. Mahamadalli Ibrahimji, ILR 34 Bom 540; Uttam Chand Lal v. Mt. Thakur Devi, 69 Ind Cas 419: (AIR 1922 Lah 39) and Debji Ghelabhai and Brothers v. R. D. Mehta and Co., Asansol, AIR 1935 Cal 255. In the case of Mukh Narain Singh, AIR 1941 Pat 147 this point has been disposed of in these words:
"......although the suit as originally framed was prima facie barred by limitation and It was therefore the duty of the plaintiffs to state the facts on which they relied to save the bar of limitation, this was not done, with the result that evidence relating to the alleged acknowledgment was inadmissible. It was only in an appeal from the original decree that the question was raised and the appellate Court then remanded the case to afford the plaintiffs an opportunity of proving the acknowledgment. This should not have been done. It is, however, contended on behalf of the respondent that the present appellants appealed against the order of remand and their appeal was dismissed and consequently they are not entitled to challenge the order of remand in the present appeal. The order of remand itself, however, was quite clearly an order under Section 151, Civil P. C., and was, therefore, not appealable. The rejection of their appeal, therefore, does not debar the present appellants from raising the matter now. In this view of the case, it is not open to the plaintiffs to rely on the alleged acknowledgment."
The same exactly is the position in the present case. Therefore, in my opinion, it was not open to the appellate Court in remanding the case to the trial Court on the first occasion to allow any opportunity to the plaintiffs For giving any evidence thereafter on the question of acknowledgment when the plaint was silent on that point. This view finds support also from the decision of the Supreme Court in Firm Sriniwas Ram Kumar v. Mahabir Prasad, AIR 1951 SC 177 wherein it has been observed that on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet, ordinarily, the Court cannot grant relief to the plaintiff. No doubt, there is an observation made therein to the effect that when the alternative case which the plaintiff could have made was not only admitted in the written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. But the observation has been made in relation to an alternative relief which not only stands admitted but is put forward in answer to the claim made in the plaint, but not to a relief which is neither admitted nor put forward in answer to the claim of the plaintiffs. Therefore, in my opinion, on the pleadings of the present case made out in the plaint, there is no scope For any relief on the basis of acknowledgment.
5. In the result, therefore, the appeal is allowed, the judgment and decree of the lower appellate Court are set aside and those of the trial Court are restored but, in the circumstances of the case, there will be no order for costs.