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Madhya Pradesh High Court · body

1978 DIGILAW 587 (MP)

Laxminarayan v. Usman Gani

1978-08-03

B.R.DUBE

body1978
Short Note : 1. The trial Court held that the non-applicant had repaid the amount of Rs. 415 by adjusting the said sum towards the expenses incurred in the electric fitting. It also held that the defendant non-applicant had executed a fresh pro-note for a sum of Rs. 185 and thus the debt due under the suit pro-note was fully discharged. Consequently the applicant's suit was dismissed. The applicant has therefore come to this Court in revision. 2. I have heard the learned counsel from both the sides. It may be noted that in the written statement the non-applicant had taken the plea of repayment of Rs. 415 towards the part satisfaction of the debt in suit. But the non-applicant in his deposition for the first time stated that he had spent a sum of Rs. 415 in the electric fitting which he had made in the house and that there was an adjustment with respect to the said sum. This evidence is contrary to the pleading and the trial Court ought not to have allowed it. It may further be noted that even in the cross-examination of the applicant, the non-applicant did not put up the case of the alleged adjustment. Therefore, the finding of the trial Court that out of the suit amount of Rs. 600 due under the pro-note the sum of Rs. 415 was adjusted is wholly perverse. 3. It is also not the case of the non-applicant in the written statement that after the adjustment of Rs. 415 towards the suit transaction pro-note for the balance of Rs. 185 was executed by him in favour of the applicant. The applicant says that with respect to another transaction the pro-note for Rs. 185 was got executed from the non-applicant. In case the debt due under the pro-note was discharged in the manner as suggested by the non- applicant at the stage of evidence, the non-applicant either ought to have taken the pro-note back from the applicant or should have insisted for an endorsement of satisfaction to be recorded in the pro-note. This has not been done. As the non-applicant has admitted the execution of the pro-note of Rs. 600 and as the plea of repayment appears to be totally false, the judgment and decree of the trial Court dismissing the applicant's claim are perverse. Revision partly allowed. Suit decreed for principal amount.