P L D 1967 Dacca 509 (PLP)

MURSHED, C. J.‑This appeal is by the plaintiff and it arises out of the following circumstances: Plaintiff‑appellant instituted the suit for recovery of a sum of Rs. 4,820 which, it is alleged, was borrowed from him by the defendant. A promissory note was executed by the defendant as a security for the amount. In the plaint filed by the plaintiff it has been perfectly made clear that the money was taken after the promissory note was executed. But, the agreement to pay back the money is alleged to be based upon the loan itself. This is very clear from the plaint itself. In the plaint filed by the plaintiff an independent transaction has been alleged. There is a case of money had and received with a promise to pay back the same. Although the suit is based on the promissory note, the grievance of the plaintiff, which is precisely stated in the plaint, is that the promise made by the defendant to repay the loan has not been fulfilled. This is patently clear. The trial Court found that the promissory note was inadmissible in evidence because it was not properly stamped. It, therefore, dismissed the suit, being Money Suit No. 10 of 1959. Plaintiff thereupon filed an appeal which was heard and disposed of by an Additional District Judge of Sylhet. The learned Additional District Judge also came to a finding that the promissory note‑was improperly stamped and was inadmissible in evidence. He, thus affirmed the finding of the learned Subordinate Judge in this behalf. There was, however, an application by the plaintiff to amend the plaint, so as to claim the said amount of money based on the failure of the defendant to repay the amount of loan on a transaction which is distinct from an enforcement of the promissory note. The prayer was rejected by the learned Additional District Judge who had relied on a decision of the Calcutta High Court in the case of Tarachand Pratapmal v. Tamijuddin Sheikh (39 C W N 1241). He also considered two decisions of the Patna High Court, namely, Dhaneshwar Sahu v. Ramrup Gir (A I R 1928 Pat. 426) and Abdul Muhammad Khan v. Mahananda Upadhyaya (A I R 1931 Pat. 293). But, he preferred to follow the Calcutta decision mentioned above and dismissed the appeal. Hence this appeal. At the hearing of this appeal we were taken through the judgments pronounced by the Courts below. It seems to us that the ratio decidendi in the aforesaid cases has not been fully appreciated by the learned Additional District Judge. The principle, which must govern this case, may be stated thus: If the suit is based on an inadmissible promissory note, it cannot form the basis of a claim. There can be no manner of doubt that no decree can be obtained on the promissory note itself. But, in a case where plaintiff is able to prove an independent contract in respect of the same transaction, we fail to see why he cannot do so. If the plaintiff had founded an alternative case in the same plaint, it seems to us that there is no dissent from the proposition that he can do so. If, however, he has not made an alternative claim, then it seems that there are two lines of decisions which apply to such a situation. The P4tna view is that without any amendment of the plaint, plaintiff is allowed to prove a transaction which is independent of the inadmissible promissory note. The Calcutta view seems to be that in such a case the requirement of law is that unless the plaintiff has pleaded the alternative case, the plaint should be amended. There is, however, some observation in the Calcutta case which seems to hold that plaintiff would undoubtedly be allowed to plead such a case if the loan is antecedent to the promissory note. From a perusal of the judgment pronounced in the above mentioned Calcutta case and also the case of Nazir Khan v. Ram Mohan (I L R 53 All. 114), which is a decision of a Full Bench of Allahabad High Court, it seems that plaintiff is permitted to found his grievance on a completely independent transaction which is independent of the promissory note. In order to do so, the Court is called upon to look, fairly and squarely, into the pleadings, and in this case we shall do so. On a perusal of the plaint which has been filed by the plaintiff there can be no manner of doubt that the plaintiff has based his case on the promise of repayment and on the defendant receiving the aforesaid sum of money. There is also no manner of doubt that plaintiff's case is that the promissory note was a collateral security to safeguard the payment of the money. Plaintiff's whole case is based on money had and received by the defendant which the latter had undertaken to pay back. Therefore, even if the promissory note cannot be the basis of plaintiff's claim, we fail to see why he would not be allowed to prove the alternative case which he had made out, namely, a breach of an undertaking given by the defendant to return back the money which he had received from the plaintiff. This is a grievance which is independent of the promissory note although it is backed by the same as a security. In these circumstances, we think that the best thing to do would be to allow the plaintiff to amend Ibis plaint. The question is: Would such an amendment amount to making a totally different case? We do not think that it is so. In the first place, we think that it is doubtful whether it is an amendment, having regard to the language of the plaint Secondly, even if it is allowed, it would not amount to making a new case. The case sought to be made out by the plaintiff is based on the failure of the defendant to pay back the money which he had received. Whether that repayment was on the basis of a promissory note or on the basis of an independent contract, the grievance is the same and the relief sought for is the same, and we fail to see how it would constitute a totally new case. For reasons stated above, we allow the appeal and set aside the judgments and decrees passed by both the Courts below. It is directed that this case be sent back on remand to the trial Court where the plaintiff should be given an opportunity to amend his plaint and thereupon a fresh trial should take place on all the issues that may become relevant on the pleadings of the parties. It is needless to say that if the plaintiff amends his plaint, defendant would be entitled to file additional written statement. We make no order as to costs of this appeal. M. R. KHAN, J,‑‑I agree. K. B. A. Appeal accepted.