P L D 1964 (W (PLP)

"(1) Is the relief based on original consideration time barred ? (2) Can the plaintiff sue on the original cause of action when it was replaced by an inadmissible pro‑note ? (3) Is there any cause of action independent of the pro note ?" Identical issues were struck in both the suits and therefore not separately reproduced.

5. In support of their case the parties have led oral and documentary evidence. The plaintiff in support of his case has only examined himself as a witness. He was examined as Exh. No. 5 as his sole witness. In his evidence he stated that the defendant was his friend and he knew him since 1951. According to him in September 1953, defendant approached him for a friendly loan in connection with his business. He helped him and paid him in cash Rs. 30,000 for which he executed a pro‑note on 26th September 1953, which is the subject‑matter of dispute in Suit No. 409/1956. The pro‑note in question is marked `A', but it was admitted in evidence subject to the objection of the defendant that it is not properly stamped. The plaintiff on oath stated that the pro‑note in question is signed by the defendant, who agreed to pay interest at 2 per cent. per annum. The plaintiff' further alleged that the defendant again approached him for the advance of further amount of Rs. 30,000 in December 1953, as loan. He stated that on 4th December 1953, he advanced a further sum of Rs. 30,CO0 as friendly loan to help the defendant to overcome his business difficulties. According to the plaintiff the defendant executed another pro‑note which is marked `A/1'. It was also admitted in evidence subject to the objection of the defendant that it is not properly stamped. The plaintiff further stated that on several occasions he made oral demands for the payment of the above‑mentioned loans and finally in this connection gave two separate notices on 3rd September 1956. He produced Exh. 5/1 and Exh. 5/2 the two copies of the notices given by him to the defendant. He further proved the postal receipts of these notices Exh. 5/3 and Exh. 5/4. The acknowledgment receipt Exh. 5/5 was also proved by him. He alleged that the defen dant had not made any payment in respect of the above‑men tioned two loans advanced to him. He claimed Rs. 1,750 as interest in addition to the principal amount up to the date of the institution of the suit in Suit No. 409/56. In Suit No. 410/1956, he has claimed Rs. 1,650 as interest up to the date of the suit in addition to the principal amount.

6. The plaintiff further stated that at the time of the execu tion and filing of the suit the defendant was residing at 53/3, Shikarpur Colony, Karachi. He denied that his firm ever entered into contract with the defendant about the purchase of the agricultural land in Nasimabad Estate and stated that there was no negotiation in this connection. He also alleged that the defendant was not an agriculturist within the meaning of section 2 of the Dekkhan Agriculturists' Relief Act. He stated that the defendant was doing business at Karachi and also owned a house in Muhammad Ali Housing Society which is yielding Rs. 1,400 or Rs. 1,500 per month as rent. He also stated that the defendant had share in Pakistan Welding Electro Ltd., and held shares of the value of Rs. 25,000 in the company as a director of the company.

7. In support of his case the defendant examined himself as Exh. No. 6 as a witness. He further examined on commission three witnesses, namely, C. W. 1 Mirza Akmal Beg, C. W. 2 Syed Muhammad Abdullah and C. W. 3 Mirza Manzoor Ahmed. In his evidence the defendant Mirza Rashid Ahmed (Exh. 6) did not deny the execution of the pro‑note or the receipt of Rs. 60,000 which is the subject‑matter of the two suits from the plaintiff. He further stated that the plaintiff visited Nasimabad Estate, which belongs to him and stayed there for two days. He negotiated for the purchase of 1,500 acres of land for the proposed sugar factory. Defendant agreed to sell the said land but wanted an assurance that this would be purchased. Accordingly, the plaintiff paid a total sum of Rs. 60,000 on two occasions to him. The defendant wanted to pass a receipt. It was, however, agreed that after the import licence is granted, the sale will be com pleted and the amount paid will be adjusted towards the price of land. The defendant stated that Mr. Nasir Ahmad, Secre tary, Industries, accompanied the plaintiff and was present during the negotiations. Later on, he remained in touch with the plaintiff about the progress of the sugar mill project. He was asked to obtain sanction for the supply of water to irrigate sugar‑cane. He relied in this connection on a copy of a letter dated 9th December 1954, marked as Exh. 6/1.

8. He further stated that he solely depends on the agricul tural income. He owned 3,400 acres of land in Sind and 250 acres in Okara in the district of Montgomery, and paid Rs. 25,000 as land revenue to the Government. He also owned an orchard at Okara. He estimated his agricultural income to be in the range of Rs. 50,000 to Rs. 60,000 per year. He denied that he carried on any business or was maintaining any office for this purpose. According to him he was a refugee from Gurdaspur district and 51‑Shikarpur Colony was allotted to him in December 1957. His children are getting education at Karachi. He, however, used to stay at Okara or Nasimabad and sometimes at Karachi. To a Court question he admitted his permanent residence was in Gurdaspur in pre‑Partition days and after Partition in Karachi till he shifted to Lahore in Gulberg Colony. He also admitted that he had constructed a house in Muhammad Ali Housing Society, which was com pleted in November 1957. It was leased out from 1‑1‑1958, at Rs. 1,100 per month. He admitted that he was a share‑holder in Pakistan Welding Electro Ltd., for about six to seven months and held shares of the value of Rs. 25,000 but these shares were sold by him later on.

9. It is admitted by the defendant that he bad filed declara tion L. C. 1 and L. C. 2 under the Land Reforms. Under L. C. 2 he kept Okara lands. In Sind he kept 1,300 acres of land. In 1957, he had sold 1,500 acres of land and was left only with 2,000 acres of land. In respect of 700 acres of land he will get bonds. He further admitted that he never called upon the plaintiff to complete the sale transaction of Nasimabad land in writing. He could not explain the reason for executing the second pro‑note. He admitted that the amount in dispute was not paid or, the basis of any percentage of the value of the land. The defendant was further examined on 22nd January 1962. On this occasion he produced copies of the alleged correspondence, Exhs. 6/2 to 6/5. He further produced a copy of the letter written to the plaintiff Exh. 6/6. These were admitted subject to the objection of the other side. He admitted that he did not have with him the acknowledgment receipt of the copy of the letter Exh 6/6. C.W. L Mirza Akmal Beg, C.W. 2 Syed Muhammad Abdullah and C. W. 3 Mirza Manzoor Ahmed stated that in July or August 1953, they met the plaintiff at Nasimabad Estate, who was accompanied by Mr. Nasir Ahmed and the defendant. The plaintiff visited Nasimabad Estate in con nection with sugar factory business and selected a site for the sugar factory as well as some land for growing sugar‑cane. The sale price of the land was agreed upon between the parties at the rate of Rs. 500 per acre. In cross‑examination C. W. 1 Mirza Akmal Beg admitted that he did not remember the number of the blocks which were selected but stated that the land was demarcated by two water courses namely water courses Nos. 9 and

10. Some portion of water course No. 8 was also selected for this purpose. He also admitted that the price was not settled in his presence. He was told by the parties that Rs. 500 per acre had been settled as the price. C. W. 2, Syed Muhammad Abdullah, on the other hand stated that the deci sion to sell 1,500 acres of land at the rate if Rs. 500 per acre took place in his presence lie further stated in cross‑exami nation that the plaintiff agreed to pay Rs. 60,000 to the defendant as earnest money but he had no knowledge about the actual payment. Mirza Manzoor Ahmad, C. W. 3, only stated that the plaintiff visited the Nasimabad Estate and met the parties in the defendant's bungalow and came to know that a sugar factory was going to be set up in the Estate by the plain tiff. He was told by the General Manager to inform the defendant that a route permit had been procured for taking the car by the canal service road. Mr. Nasir Ahmad, C. S. P. was also cited as a witness by the defendant but was given up later on before the Commissioner. By consent of the parties docu ments Exhs. Nos. 7/1, 7/2, 7/3, 7/4, 7/5, 7/6, 7/7, 7/8 and 7/9 were admitted in evidence. These documents show that the defendant owns agricultural land and gardens in Okara, Montgomery and Tharparkar districts. This, in short, is the evidence produced by the parties in support of their case. I will now take up the issues and discuss them in the light of the evidence produced by them.

10. Issues Nos. 1, 2 & 3.‑The learned counsel for the defendant did not press Issue No. 1 in view of the abrogation of 1956 Constitution of the Islamic Republic of Pakistan. It was, however, urged by his counsel that the Dekkhan Agriculturists' Relief Act applies to the facts of the case and in view of the provisions of section 11 of this Act, this Court has no jurisdiction to entertain the suit. Mr. Muzaffar Hassan, his learned counsel contended that under section 2 (3) of the above‑mentioned Act, the defendant can only be deemed to reside either in Tharparkar District or Montgomery District where he earns his livelihood by agriculture. On the other hand, Mr. A. A. Zari, the learned counsel for the plaintiff has urged that the extension of 2, 7 and 71 of the Dekkhan Agriculturists' A Relief Act to the Province of Sind by the Governor of Bombay under notification dated 13th March 1901, was beyond his powers and ultra vires. According to the learned counsel the region known as Sind was treated in the notification as a Province and, therefore, the said notification is illegal. The learned counsel contended that under section 1 of the said enactment there was no power with the Provincial Government to extend the Act to the whole of the Province. It could only be extended to a particular District. In the alternative the learned counsel contended that the extension of these provisions after the Partition of the sub‑continent lost its validity in view of the Adaptation of Central Acts and Ordinances by Pakistan. The learned counsel pointed out that Karachi was separated from. Sind on 23rd July 1958, under the Pakistan (Establishment of the Federal B Capital) Order, 1948, and, after that the extension of these pro visions ceased to have any effect in Karachi. This power under item No. 66 of the Adaptation Ordinance vested in the Central Government, which was never exercised.

11. It was lastly urged by Mr. Zari, that even if it is assumed for the sake of argument that Chapter III and sections 2,7 and 71‑A of the Dekkhan Agriculturists' Relief Act was validly extended to Karachi and remained in operation after the separa tion of Karachi from the Province of Sind, the defendant cannot be considered to be an agriculturist within the meaning of section 2 of the enactment. He argued that the defendant's income from the non‑agricultural sources on his own evidence was much more than his agricultural income and under the relevant provision of law he is not an agriculturist. In support of his contention the learned counsel relied on a decision of the Bombay High Court in Vamahacharya Ramacharya v. Govind Madhavacharya (A I R 1924 Bom. 33). In my opinion, the last point raised by Mr. Zari must prevail on the evidence produced by the parties. It will, therefore, serve no useful purpose to discuss the other points raised by the plaintiff's counsel and I would refrain from expressing any opinion on them. In the above‑mentioned Bombay case a Division Bench of the Bombay High Court observed as under :‑ "Income from lands not in a district, to which the Dekkhan Agriculturists' Relief Act applies, cannot properly be treated as income from agricultural sources, but must be treated as non agricultural income, for, to constitute a person as `agriculturist' for the purposes of the Act he must earn his livelihood princi pally by agriculture carried on within the limits of a district to which the Act applies." It would, therefore, be necessary to find in this case what is the income of the defendant from agricultural sources in the district to which section 2 of the Dekkhan Agriculturists' Relief Act applies. It is admitted by the defendant in his evidence at lines 29 to 31 of his statement that his agricultural income is in the range of Rs. 50,000 to Rs. 60,000 per year. He further admitted that half of his income from agricultural land situated in Than parkar District had ceased to exist firstly on account of the fact that he had sold 1,500 acres of land in the year 1957 and secondly, under the Land Reforms 1300 acres of land is left with him. In view of this now his income from the agricultural lane in Sind is in the range of Rs. 8,000 per annum. It is further admitted that his income from Okara orchard is about Rs. 25,000 per year. According to the defendant the rental income from the house situated in Karachi is in the sum of Rs. 13,000 per year Thus on his own showing at present defendant's income frost agricultural sources in Tharparkar District is not more that Rs. 8,000 per annum. On the other hand his income from Okara orchard is about Rs. 25,000 per annum. In addition to this, hi rental income from Karachi property is about Rs. 13,000 per annum. It is admitted by the parties that section 2 of the Dekkhat Agriculturists' Relief Act applies to Tharparkar District any the income from the lands situated in this District shall have to be treated as income from agricultural sources. It is further admitted by both the parties that section 2 of the above enactment is not applicable to Montgomery or Okara District Mr. Zari, therefore, contended that the defendant's income fro gardens and lands in this District cannot be treated as income from agricultural sources and must be treated as income fro non‑agricultural sources for the purposes of these suits.

12. In my opinion the contention of Mr. Zari is well founded. His contention is fully supported by the above‑mentioned Bombay decision. In the Bombay decision it was held that any income of an agriculturist from agricultural sources in a district, where the Dekkhan Agriculturists' Relief Act, section 2, does not apply will be considered to be an income from other sources. In order to appreciate the view taken in the Bombay case it may be mentioned that under section 11 of the Dekkhan Agriculturists' Relief Act a suit against an agriculturist must be instituted and tried in a Court within the local limits of whose jurisdiction such defendant reside and not elsewhere. Admittedly the defendant at the time of the institution of the suit resided in Karachi and the suits were maintainable in this Court. But in section 2, clause (3) it is provided as under :‑ An agriculturist shall be deemed to reside where he earns his livelihood by agriculture or personally engages in agricul tural labour as aforesaid. Since section 2 is assumed to be effective in Karachi, the defen dant had invoked its provisions. It is in this context that the question has arisen whether the income from the agricultural sources in the District to which the above enactment applies is to betaken into consideration or the income from the agricultural sources in other District to which the said enactment does not apply should also be taken into consideration. The answer to this question is to be found in the 1st clause of section 2 which is reproduced below :‑ Ist. `Agriculturist' shall be taken to mean a person who by himself or by his servants or by his tenants earns his livelihood wholly or principally by agriculture carried on within the limits of a district or part of a district to which this Act may for the time being extend, or who ordinarily engages personally in agricultural labour within those limits. On the terms of the above provisions it is perfectly clear that the earning of any person from the agricultural sources in the District to which the Act may for the time being extend is only to be taken into consideration for determining his livelihood wholly or principally by agriculture with a view to treat him as an agriculturist within the meaning of section

2. In the light of this discussion the view of the Bombay High Court must be accepted as correct. I would, therefore, treat the income of the defendant from gardens and lands in Okara and Montgomery District as from non‑agricultural sources. On this view of the matter the defendant's income from non‑agri cultural sources being much more, he cannot be treated as an agriculturist to get the benefit of section

2. The objection of the defendant, therefore, that this Court has no jurisdiction to entertain the two suits has no force and must be repelled.

13. Issues Nos. 4, 7 & II.‑The case of the defendant is that that the amount in dispute was advanced by the plaintiff on behalf of M/s. Hyesons Commercial & Industrial Corporation towards the price of 1,500 acres of land which they agreed to buy from the defendant at Rs. 500 per acre. His case is that this amount was paid by the plaintiff on behalf of the firm as an earnest money in the circumstances set out in paragraph 6 of the written statement. In support of the contention, the defendant has relied on a letter of Sind Government Exh 5/6, dated 11th October 1954. In this letter the Assistant Secretary to the Government of Sind, Industries and Labour forwarded to the Assistant Secretary Public Works Department, Government of Sind, a letter of M/s. Hyesons Commercial & Industrial Corpora tion, Karachi in which they stated that they were feeling great diffi culty for want of enough water for the irrigation of 4,000 acres of land for the plantation of sugarcane in the Tharparkar District and requested that all possible assistance may be given to them so that the proposed sugar factory be installed at an early date. In addition to this the defendant has relied on his own statement and statements of his witnesses C. W. 1 Mirza Akmal Beg, C. W. 2 Syed Muhammad Abdullah, C. W. 3 Manzoor Ahmed. He also produced copies of letters alleged to have been addressed by him and the Government of Pakistan, Ministry of Industries to M/s. Hyesons Commercial & Industrial Corporation, Exhs. Nos. 6/2, 6/1 and 6/5. The plaintiff raised objection on the admissibility of these documents because the original were not summoned and there was no secondary evidence in proof of the existence of the original letters alleged to have been sent by the defendant or by the Government concerned. In my opinion these documents are of no assistance for the decision of this case as these have not been properly proved on the record. I, will, therefore, decline to take them into consideration for the decision of these cases. They are merely copies and are not signed by anybody. Their authenticity is doubtful for these have not been produced on the record from proper custody. These document are inadmissible in evidence and must be rejected.

14. As regards the other evidence on this point, I am satisfied that the defendant has failed to prove that there was any agreement of sale between him and M/s. Hyesons Commer cial & Industrial Corporation through the plaintiff as partner in respect of 1,500 acres of land belonging to him situated in Tharparkar District. At no time before the institution of the suit the defendant contacted the firm concerned in respect of the alleged agreement. Although the plaintiff served notices on the defendant Exh. 5/1, Exh. 5/2 for the recovery of the amount in suit but he did not take up the position that his claim was false or the amount in dispute was advanced to him in connection with the alleged sale transaction. The defendant did not send any reply of the notices to the plaintiff. The oral evidence produced by him is also very shaky. Some of the witnesses have contradicted themselves in detail All the three witnesses, namely, C. W. I Mirza Akmal Beg, C. W. '', Syed Muhammad Abdullah, C. W. 3, Mirza Manzoor Ahmad have at one or the other time been in the employment of the defendant. I will, therefore, not place any reliance on their statements in support or proof of the alleged sale. It is the case of the defendant and all the witnesses produced by him that the plaintiff and Mian Nasir Ahmad the then Secretary, Industries Department, Government of Pakistan, was present when the alleged agreement of sale was entered into between the defendant and M/s. Hyesons Commercial & Industrial Corporation, through the plaintiff. Although the defendant summoned Mian Nasir Ahmad but he gave him up. His failure to produce such an important witness in support of the alleged agreement of sale, leaves no doubt in my mind that the story set up by the defendant has no basis whatsoever. It may be that M/s. Hyesons Commercial & Industrial Corporation was interested in installing a sugar factory in Tharparkar District but the letter Exh. 5/6 shows that it was on 4,000 acres of land and not on 1,500 acres of land. On the contents of the letter Exh. 5/6, the case of the defendant that the agreement to purchase was in respect of 1,500 acres of land stands contradicted. Besides. it is difficult to believe that the defendant would not get such an agreement recorded in writing. The fact that the defendant at no time prior to the institution of the suit gave any notice to M/s. Hyesons Commercial & Industrial Corporation or to the plaintiff for the performance of the alleged agreement of sale also shows the weakness of his plea in this respect. At a late stage of the suit the defendant produced a copy of the letter Exh. 6/6 alleged to have been sent by him on 16th February 1954 which reads as under:‑ "I hereby give you first option to purchase 2,000 acres of land from Nasimabad Estate at a price to be mutually agreed between us. This option is given to you provided you are successful in obtaining permission to put up the sugar factory on my Farm," The admissibility of this document was also objected on behalf of the plaintiff on the ground that neither was its original summoned from the plaintiff nor was it put to him in the witness box. In fact the contents of this letter contradict the case of the defendant set up in the pleadings and give altogether a different picture to the alleged agreement of sale. This letter being inadmissible in evidence cannot be taken into consideration in support of the defendant's case and as discussed above is not even helpful to the defendant's case. After careful consideration of the evidence produced by the parties I have no hesitation in holding that the defendant has failed to establish the alleged agreement of sale. In view of this finding the question that the suit is bad for non‑joinder of the plaintiff or as framed not main tainable does not arise and must be answered in the negative. I would decide Issues Nos. 4, 7 and II against the defendant. Issues Nos. 5 & 6.‑They are not pressed and decided against the defendant.

15. Issues Nos. 8, 9, 10, 12, 13,14, 15 and Additional Issues Nos. 1, 2 & 3.‑The defendant has objected to the admissibility of the two pro‑notes Exh. A and Exh. A/1 on the ground that the stamps affixed on them have not been properly cancelled. The admitted position is that both the pro‑notes separately bear eight annas revenue stamps of one anna each but out of them only four are cancelled and the remaining four revenue stamps of one anna each have not been cancelled. The contention of Mr. Muzaffar Hassan that the pro‑notes are not admissible in evidence in view of section 12 (3) and section 35 of the Stamp Act is well founded and must prevail. The contention of the learned counsel is fully supported by two decisions of Labore High Court in Khazan Shah v. Attaullah (A I R 1933 Lah. 148) and Sohan Lal Nihal Chand v. Raghu Nath Singh (A I R 1934 Lah. 606). It was held in these cases that if a pro‑note is stamped with several adhesive stamps, all the stamps must be H cancelled. If any one stamp is not cancelled the instrument cannot be deemed to be duly stamped and is inadmissible in evidence. it is, therefore, quite clear that the pro‑notes in vi question cannot be deemed to have been duly stamped and are inadmissible in evidence.

16. But Mr. Zari contended that it is open to a creditor to fall back on the original consideration if all the terms of the contract are not embodied in the pro‑note or the pro‑notes are executed as a collateral security. I have already mentioned that although the plaintiff originally did not base his claim on the original consideration, the plaint was later on amended and now the claim is also based on original consideration. The defendant objected to the amendment on the ground that the claim in suit has become barred by time and it was not open to the plaintiff to base the claims on original consideration. The amend ment was, therefore, granted subject to the objection of the defendant. It, therefore, becomes necessary to decide whether the plaint should have been allowed to be amended or whether it is otherwise open to the plaintiff to base the claim in suit on original consideration. The learned counsel for the defendant in support of his contention that the amendment of the plaint could not be allowed has relied on two decisions. In Kewalram Tekchand & Co. v. Shewaram Rochlram (A I R 1942 Sind 104), a Division Bench of the Sind Chief Court observed that the application for amendment of the plaint was rightly dismissed by the First Appellate Court because the application to amend the plaint was not made to correct a misdescription or mistake but for seeking to substitute one defendant for another and was made at a late stage when the claim against the proper defendant had become time‑barred. In Bhagwanji Morarji Goculdas v. Alembic Chemical Works Co. Ltd. (P L D 1948 P C 73), the Judicial Committee held that‑ "amendment of the plaint introducing a new claim, which would have been barred by limitation, at the time when the leave was sought, cannot be allowed." Both the cases are distinguishable because in the present case the plaintiff has neither introduced a new party or substituted another party nor had he introduced a new claim which was barred by limitation. Recently the question of amendment of plaint was considered in the case of Karamat Ali v. Mohammad Yunus Haji (P L D 1963 S C 191) by the Supreme Court of Pakistan. In that case the plaintiff who was out of possession did not ask for the relief of possession in the plaint. Their Lordships allowed the amendment of the plaint at the stage of appeal in Supreme Court, although the claim for possession by that time bad become barred by limitation, on the ground that the nature of the suit was not altered by addition of prayer of possession. In order to appre ciate the view of their Lordships on the question of the amend ment of the pleadings, it would be useful to reproduce the observations of Hamoodur Rahman, J. His Lordship observed as under :‑ "That this Court has the power to grant leave to amend even at the stage in which the matter is in the present case is not denied by the learned counsel appearing on behalf of the respondents, but it is contended that this power should not be exercised where its effect would be to take away a legal right which has accrued by lapse of time. It is pointed out that on the admission of the appellant Karamat Ali himself the respondent took possession of all but the homestead portion after the decision of the District Judge in the revision filed against the order of the Appellate Officer. This was some time in 1944‑45 and, as such the claim of the appellants to possession has clearly become barred by limitation. The Judicial Committee of the Privy Council consistently maintained that it had undoubtedly full power to allow such amendments even where a legal right had accrued by lapse of time if the special circumstances of the case outweighed such consideration vide : Md. Zahoor Ali Khan v. Mst. Thakooranee Rutta Koer and Charan Das and others v. Amir Khan and others. That this Court possesses similar power to do complete justice cannot be disputed. In exercising this power, no doubt, this Court would be reluctant to allow an amendment which would have the effect of toially altering the nature of the suit or of taking away a valuable right accrued by lapse of time, but where in the circumstances of a particular case it would be plainly inequitable to refuse such a relief this Court will not hesitate to do what the Judicial Committee did in the case of Md. Zahoor Ali Khan v. Mst. Thakooranee Rutta Koer." In view of these observations, it is quit obvious that the amendment of the plaint can be allowed even in those cases where the claim has become time‑barred on the date when the amend ment was sought provided the amendment prayed for does not seek to alter the nature of the suit. In Charan Das and others v. Amir Khan and others (A I R 1921 P C 50) the Judicial Committee has taken a much broader view of the question and held that amendment of the pleading may be allowed in special circumstances even after expiry of period of limitation of a suit. Admittedly, the plain tiff's case in both the suits from the very beginning is that the amounts in suits were advanced by him as friendly loan for commercial purposes, but based the claims on the pro‑notes executed by the defendant. However, later on the plaintiff sought the amendment of the plaint to base the claims on the basis of the original liability in order to obviate the technical objection about the admissibility of pro‑notes in evidence. In my opinion by amending the pleading for this purpose the plaintiff cannot be charged with changing the nature of the suit. It is open in law to a plaintiff in cases where in respect of an original liability to pay a certain sum of money, a document such as pro‑note etc., is found inadmissible, to base the claim on original consideration and such amendment in number of judicial decisions has been held not to amount to a substitution of a distinct cause of action. It is nothing more than adding a new ground of relief, which certainly cannot be said to alter the character of the suit. I would, therefore, repel the contention of the defendant in this respect and hold that the amendment was properly allowed as it does not in the least alter the nature of the suit. On this view of the matter, the relief based on original cause of action cannot be considered to be barred by limitation and Additional Issue No. 1 is decided in favour of the plaintiff.

17. The next important question for consideration is whether the plaintiff can fall back on the original cause of action when the pro‑notes executed by a debtor are found to be inadmissible in evidence under section 35 of the Stamp Act. This question is covered by Additional Issues Nos. 2 and

3. As there are divergent views on this point, I referred this question to a Division Bench under rule 10 of the Sind Chief Court Rules (Original Side) by order dated 7th May 1960. On reference by judgment dated 19th April 1963, the Division Bench answered the points as under :‑ "(a) If the promissory note embodies all the terms of the contract and the instrument is improperly stamped, no suit on the debt will lie in view of the bar of section 91, Evidence Act, and section 35, Stamp Act. But if it does not embody all the terms of the contract the true nature of the transaction can be proved and the plaintiff's claim can be decreed on that basis. (b) In those cases where an instrument has been given as collateral security or by way of conditional payment, a suit on the debt will lie and there would be a cause of action independent of the instrument for its recovery." The decision of these two issues will have to be determined in the light of the above enunciation of the law on the point under consideration. It will, however, be noted that the facts of this case were also discussed by the Division Bench in paragraph 12 of the judgment. The Division Bench on the facts involved in these matters observed as under "It will, therefore, be open to the plaintiff in the present case to base his claim on the original consideration on the ground that all the terms on ‑which the loan in question was advanced to the defendant are not incorporated in the two pro‑notes executed by the defendant or that the instruments in question were given as a collateral security or by way of conditional payment. The pro‑notes executed by the defendant are in the following terms:

`On demand I, Mirza Rashid Ahmed son of Khan Bahadur Mirza Sultan Ahmed of Nasimabad Estate, promise to pay Mr. K. M. Muneer son of Khan Sahib K. Abdul Hye a sum of Rs. 30,000 (Rupees thirty thousand only) with two per cent. interest.' Even on the defendant's plea it is abundantly clear that the documents in question were not executed in respect of any amount advanced as loan by the plaintiff but in respect of certain amounts paid in advance towards the agreement of sale of the agricultural land belonging to him in Nasimabad Estate, Tharparkar District. It seems to us that since the pro‑notes in question do not embody all the terms of the contract, neither section 91 of the Evidence Act nor section 35 of the Stamp Act would be a bar in the way of the plaintiff to file a suit for the recovery of the debt in question alleged to have been advanced by him as loan." Thus there is a clear finding of the Division Bench on the point under consideration. According to the evidence led by the parties the pro notes in question do not embody all the terms of the contract. It is, therefore, open to the plaintiff to base his claim on the original consideration and neither section 91 of the Evidence Act nor section 35 of the Stamp Act would be a bar in the way of the plaintiff to establish that the amounts 1H claimed in the two suits were advanced by him as commercial loan to the defendant. I accordingly hold that the plaintiff on the facts of this case can sue on the original cause of action or consideration. I further hold that in the present case there is a cause of action in favour of the plaintiff independent of the pro‑notes in question. On this view of the matter Additional Issues Nos. 2 and 3 are decided in favour of the plaintiff.

18. This brings me to the question whether the defendant is liable to pay the amount claimed in the two suits. The defendant has not denied the receipt of Rs. 30,000 on 26th September 1953 and another sum of Rs. 30,000 on 24th Decem ber 1953. In fact he admitted that a total sum of Rs. 60,000 was paid to him by the plaintiff on two occasions. His case is that it was paid as earnest money towards the alleged agreement of sale of his 1,500 acres of land in Tharparkar District. I have already disbelieved his case in this respect. In view of his admission the plaintiff is entitled to the decree in the amount as prayed by him in the two suits.

19. In the result the plaintiff's claim is decreed with costs as prayed. K. B. A. Suits decreed.