DEWAN CHAND BARBAR Vs. JAY PEE FINANCE CORP

JUDGEMENT

(1.) THIS appeal under the letters Patent is directed against the judgment of a learned Single Judge of this Court (Honble Chief Justice Jaswant Singh as His Lordship then was) and arises in the circumstances which presently follow :

(2.) THE plaintiff, who is the rspondent in this appeal, has brought a suit under Order XXXVII of the Code of Civil Procedure for the recovery of Rs. 7,630/ - against the defendant, who is the appellant before us. An objection was taken by the defendant -appellant that the suit pronote being insufficiently stamped Section 35 of the Stamp Act was a clear bar to its admissibility in evidence, and no relief could be given to the plaintiff -respondent on the basis of this pronote. An additional issue was raised by the learned Single Judge in the following terms: - "Whether the suit pronote is insufficiently stamped and as such is inadmissible in evidence ? "

(3.) AFTER hearing the arguments of learned counsel for the parties, the learned Single Judge came to the conclusion that the suit pronote being insufficiently stamped was inadmissible in evidence, but keeping in view the averments made by the plaintiff in Paras 2 and 3 of the plaint, the learned Single judge held that the plaintiff -respondent was entitled to get relief on the basis of the original debt. Operative part of the judgment appealed against reads thus: - "The issue is disposed of accordingly, and it is held that the plaintiff is entitled to sue on the original debt and adduce other evidence in support thereof." Mr. Bhardawaj, the learned counsel for the appellant has assailed the judgment under appeal on two grounds. His first contention is that once the learned Single Judge held that no relief could be given to the respondent on the basis of the suit pronote, the provisions of Order XXXVII of the Code of Civil Procedure ceased to apply to the suit and the suit amount being only Rs. 7,630.00, the High Court could not try the suit on its original side. The other contention raised by the learned counsel is that the suit is based purely upon a pronote which was not and could not be a collateral security, and the plaint also does not contain any averment entitling the respondent to get relief on the basis of the original consideration in the alternative. The learned Single Judge, according to Mr. Bhadarwaj has erred in making out a case for original consideration in favour of the respondent.