Parmanand vs Kirandevi

Shivdayal, J.—This second appeal arises out of a suit, for the recovery of Rs. 734/-, which was instituted by Kirandevi respondent on foot of a bond dated February 29, 1952, alleged to have been executed by Parmanand appellant in favour of Umrao Singh for Rs. 540/-. It was alleged in the first paragraph of the plaint that the sum of Rs. 540/- was borrowed in cash. The defendant denied the execution of the bond as also the consideration. The first issue framed by the trial Judge was whethe the defendant borrowed from Umrao Singh Rs. 540/- cash on 29-2-52 and executed the bond in his favour.

The defendant also took the plea that the transfer of the suit bond by Umrao Singh in favour of Kiran Devi was not permissible in law.

When the plaintiff examined himself as a witness, he stated that on the date of the execution of the bond he paid only Rs. 50/- to the defendant while a total sum of Rs. 490/- was outstanding against Parmananad on account of several other loans taken by him from time to time.

The learned trial Judge dismissed the suit deciding is due No. 1 against the plaintiff The first appellate court has reversed that finding and has held that there is no reason to disbelieve Umrao Singh. When the amounts were paid from time to time it is not expected to keep witnesses present when the amounts were advanced. The learned Judge relied on AIR 1949 113 (Nagpur) . In the result he passed a decree for Rs. 685/8/- in favour of Kiran Devi.

It was first contended by shri Mittal that there could not be a legal sale of the suit bond by Umrao Singh in favour of Kiran Devi. In my opinion this contention is devoid of substance in view of S. 130 of the Transfer of Property Act. An actionable claim is transferable.

It was then urged by the learned counsel for the defendant that the plaintiff during the course of the trial: tock a turn when he stated that the suit bond included provious loans which were not disclosed in the plaint and the whole trail was prejudiced. Following the observation of their Lordships in Trajan & Co. Ltd. Vs. Nagappa Chattier, 1953 SCK 789, it must be said that the plaintiff should have clearly stated in his plaint that although in the suit bond a cash transaction had been shown, in fact, the amount was made up partly of cash advance and partly of outstanding loans. This is not a case where the rule laid down in Nagubai Ammal and Others Vs. B. Shama Rao and Others, could be applied. Umrao Singh did not specify even in his statement what amounts were borrowed from him by Parmanand and on what dates. At any rate in view of what follows, I would not make any further observations but will content myself by saying that the observations in Mahafazul Rahim''s case do not apply here. In the first place it must be remembered that Padhye J., while observing in that case, ''''It is always open for the parties to prove that the consideration for a particular transaction is otherwise than what has been stated in the document as consideration is not one of the terms of the document", was considering Section 92 of the Evidence Act. Although it is not clear from the judgment of that case by what kind of evidence the plaintiff proved the consideration, it seems to me that previous transactions must be proved. Shri Asthana tells me with great emphasis that outstanding loans are generally treated as cash transactions and are described as such in bonds. He also informs me that from his personal experience of long standing, he can site a large number of cases where in the plaints although previous dues were not specified decrees were passed by the courts. I am prepared to accept that statement but I am not prepared to allow that practice to perpetuate. It cannot be denied that verification of a plaint has its own sanctity and that sanctity cannot be allowed to be violated so lightly and deliberately. Litigants must know that deliberate lies discovered in their pleadings will only be condemned. If a plaintiff knows that he did not advance cash on the particular date when the suit bond was executed, he must say so in the plaint and give details of the previous loans. No doubt he might take all advantage that may be due from the fact that the defendant executed the bond for the entire sum with his eyes open. I am clearly of the opinion that the observations in Mahafazul Rahim''s case are not intended to encourage litigants to make deliberately false statements in the plaint and verify them and then to take a turn in the course of evidence. Variance between pleading and proof is permissible within certain limits but that cannot be stretched to unbounded lengths.

During the course of the arguments Shri Ashthana moved an application for leave to amend the plaint. There is a special circumstance in this case. Plaintiff Kiran Devi was not the original lender; she is only anassignee of the actionable claim, she states that the was not aware of the fact that the consideration of the suit bond consisted of Rs. 50/- as cash advanced on the date of the execution of the bond and Rs. 490/- as previous debts. Having heard Shri Mittal on this point as wall, I grant leave to the plaintiff to amend her plaint. As a necessary consequence the judgment and decree passed by the courts below will have to be pet aside and the trial of the case will have to be proceeded with de novo.

This appeal is partly allowed. The judgment and decrees of both the court below are set aside. The case shall now go back to the trial Judge for allowing the plaintiff to amend the plaint, for giving an opportunity to the defendant ho file a fresh written statement in answer to the amended plaint and for proceeding with the trial in accordance with law. Costs heretofore incurred shall abide the result of the suit in the first court after this remand.