JUDGMENT 1. - This is a plaintiff's appeal against the judgement & decree of the District Judge, Jodhpur, dated 6.3.72 in a suit for money. 2. The facts relevant for the purpose of this appeal are like this. Bhoormal, respondent No. 1 and Shashikant were partners in the firm known as Jai Hind Medical Stores, Jodhpur. On 1.6.64 the two partners borrowed a sum of Rs. 16,500/- from the plaintiff-appellant. On 1.5.66 the accounts were gone into and a sum of Rs. 15,000/- was found due to the plaintiff. Shashikant on behalf of the firm issued a cheque to the plaintiff in repayment of the debt. The cheque on being presented to the Bank on 23.6.66 was dishonoured. The plaintiff after due notice instituted the suit out of which this appeal has arisen on 24.4.69 for the recovery of Rs. 15,000/- as principal and Rs. 5361/- by way of interest-total Rs. 20,361/- against the firm through its two partners. The plaintiff also impleaded Bhanwarlal, respondent no. 2, Karanchand and Mst. Mani Behan, who according to him, stood surety for the repayment of the debt. Bhoormal respondent & his partner Shashikant did not put in their appearance and allowed the suit to proceed exparte against them. The suit was resisted by three sureties including Bhanwarlal respondent no.2. The learned District Judge dismissed the suit as barred by time. The plaintiff has how come up in appeal praying that a decree be passed against Bhoormal, respondent no. 1 & Bhanwarlal, respondent no. 2 to the extent of Rs. 10,180.50P only. He gave up rest of his claim. It may be mentioned here that in the memo of appeal he also impleaded Shashikant, Karanchand & Mst. Mani Behan but subsequently he withdrew the appeal against these respondents. The appeal now subsists only against two respondents namely, against Bhoormal as partner of the firm Jai Hind Medical Stores and Bhanwarlal. None of these two respondents has appeared before me to contest the appeal. 3. Arguing the appeal, Mr. Bhansali rightly conceded that no decree can be passed against Bhanwarlal for the surety bond executed by him could not be proved as it was insufficiently stamped and the plaintiff failed to deposit the amount of penalty ordered by the court. None of these two respondents has appeared before me to contest the appeal. 3. Arguing the appeal, Mr. Bhansali rightly conceded that no decree can be passed against Bhanwarlal for the surety bond executed by him could not be proved as it was insufficiently stamped and the plaintiff failed to deposit the amount of penalty ordered by the court. His sole contention in this appeal is that the court below committed error in not decreeing the suit against Bhoormal partner of the firm Jai Hind Medical Stores. The learned District Judge has found on evidence that two partners of the Firm Jai Hind Medical Stores, namely, Bhoormal & Shashikant had borrowed a sum of Rs. 16,500/- on 1.4.65. He has further founded that on 23.6.66 the cheque (Ex.4) for Rs. 15,000/- signed by Shashikant as partner of the firm Jai Hind Medical Stores was issued and handed over to the plaintiff and that the cheque was dishonoured by the bank. The learned District Judge found the above facts fully proved after a great discussion of the evidence on the record and I entirely agree with the above findings. 4. The question arises whether in the circumstances the suit is barred by time. The learned District Judge has held that where a cheque is delivered to a creditor by a debtor in whole or in part satisfaction of the liability and the cheque is dishonoured the handing over of the cheque does not amount payment of the debt in whole or in part & the dishonoured cheque will not extend the period of limitation. Relying on the above principle, the learned District Judge observed that since the plaintiff advanced the loan on 1.4.65 and the suit was brought on 24.4.68, that is, after three years from the date on which the loan was advanced it was barred by time. In support of his view he relied on AIR 1966 Allahabad 137 and AIR 1956 Bombay 553. The principle laid down in both these cases is that where a cheque is dishonoured the handing over of the cheque does not amount payment of the debt within the meaning of Section 20 of the Limitation Act so as to extend period of limitation. The principle laid down in both these cases is that where a cheque is dishonoured the handing over of the cheque does not amount payment of the debt within the meaning of Section 20 of the Limitation Act so as to extend period of limitation. A contrary view has been taken in AIR 1961 Madhya Pradesh 346 where payment by dishonoured cheque was treated as payment within the meaning of Section 20 of the Limitation Act, 1908. No authority of this Court has been cited before me. It however, do not feel inclined to enter into this controversy, for, in my opinion the dishonoured cheque itself furnished good cause of action for the recovery of the amount of the cheque 'Cheque' is defined in Section 6 of the Negotiable Instruments Act as a bill of exchange drawn on a specified banker and not expressly payable otherwise than on demand. The cheque is therefore a bill of exchange and cause of action accrues on a cheque being dishonoured as on a dishonoured bill of exchange. Such a suit would be governed either by Art.40 or Article 113 of the Limitation Act, 1963. The period of limitation prescribed under both these Articles is three years. The present suit was instituted within three years from the date the cheque was issued and hence it would have been within time if the suit had been based on the dishonoured cheque. 5. The plaintiff has no doubt not based his suit on the basis of the dishonoured cheque but there is clear disclosure of all the facts in the plaint and, in my opinion, the Court can grant the plaintiff alternative relief based on dishonoured cheque under O.7, R.7, C.P.C. even though not expressly prayed for in the plaint. The only qualification on this general principle is that there should be no surprise to the other party. The question of surprise to the defendant does not arise at all in the present case as the facts regarding dishonouring of the cheque were not only fully pleaded in the plant but were also proved by the plaintiff. In this connection, I am reminded of the decision in Sangram Singh v. Election Tribunal, AIR 1955 SC 425 wherein their lordships of the Supreme Court laid down as follows:- " A code of procedure must be regarded as such. In this connection, I am reminded of the decision in Sangram Singh v. Election Tribunal, AIR 1955 SC 425 wherein their lordships of the Supreme Court laid down as follows:- " A code of procedure must be regarded as such. It is procedure something designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it." I am therefore of the view tht the learned District Judge was not right in dismissing the suit. 6. In the result, I allow the appeal, set aside the judgement and decree of the court below and pass a decree against Bhoormal for Rs. 10,180/-. The dismissal of the suit against other defendants shall stand in tact. Since Bhoormal neither contested the suit in the lower court nor he chose to contest this appeal, I leave the parties to bear their own costs throughout. *******