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2001 DIGILAW 403 (MAD)

S. P. Valliammal Achi v. Abdul Khader Jalini

2001-03-29

K.SAMPATH

body2001
Judgment : 1. Plaintiff in O.S.No.45 of 1981 on the file of the Principal District Munsif, Madurai, is the appellant in the second appeal. 2. Theplaintiff filed the suit for recovery of money due on a promissory note. Her case was was follows: The defendant/ respondent borrowed Rs.2,000 on 3.2.1972 from her and executed a promissory note in her favour agreeing to repay the amount with interest at 12% per annum, on demand. He paid Rs.50 on 7.1.1975 and another Rs.50 on 6.1.1978 towards interest, thereby acknowledging his liability. In spite of repeated demands, he did not repay the amount and the suit was, therefore, filed. 3. The defence was that he borrowed Rs.2,000 only from the husband of the plaintiff. He paid Rs.50 on 7.1.1975, but, he did not pay Rs.50 on 6.1.1978 as claimed in the plaint. The acknowledgment, dt. 6.1.1978, ought to have been forged by the husband of the appellant. The claim was barred by time. It was his further case that he had paid Rs.1,000 on various dates to the plaintiffs husband upto September, 1977. He approached the plaintiffs husband in October, 1977 and both settled the account and the balance was only Rs.1,200. It was agreed to be repaid at the rate of Rs.20 per month. He had paid Rs.40 on 5.12.1977; Rs.40 on 16.3.1978; and Rs.20 on 25.4.1978. He was entitled to the benefits of the Act 38 of 1972 and 40 of 1979. 4. The trial Court found that the respondent had executed the suit promissory note in favour of the plaintiff/ appellant, that the endorsement dated 6.1.1978 was a forged one, that the respondent was not entitled to the benefits of Act 40 of 1979, and that the claim was barred by time. So holding, by judgment and decree dated 18.12.1987 the learned District Munsif dismissed the suit. 5. . The appellant herein filed appeal A.S.No.171 of 1988 before the Principal District Court, Madurai. The learned appellate judge confirmed the decision of the trial Court by judgment and decree dated 15.2.1989 and dismissed the appeal. It is as against this the second appeal has been filed. 6. At the time of admission the following substantial questions of law were framed for decision in the second appeal: 1. The learned appellate judge confirmed the decision of the trial Court by judgment and decree dated 15.2.1989 and dismissed the appeal. It is as against this the second appeal has been filed. 6. At the time of admission the following substantial questions of law were framed for decision in the second appeal: 1. Whether the Courts below are right in dismissing the suit when the defendant has categorically admitted in his evidence that he has paid Rs.20 on 25.4.1978 and when this admission leads to an irresistible inference that the defendant had already given life to the pro note by making an endorsement under his signature. 2. Whether the judgment of the Courts below are vitiated for the reason that the Courts below omitted to note the significant admission made by the defendant about the payment of Rs.20 on 25.4.1978 and the legal inference flowing there from. 7. The learned counsel for the appellant submitted that even conceding without admitting that the second endorsement was not genuine, still, having regard to the specific case of the defendant/ respondent in the written statement that on a particular date settlement was reached between the parties and it was agreed that the balance was Rs.1,200, that the respondent would repay that amount at the rate of Rs.20 per month, that he had paid Rs.40 on 5.12.1977 and Rs.40 on 16.3.1978, and Rs.20 on 25.4.1978, then for the balance of the amount accepted by the respondent to be due, namely, Rs.1,100 the appellant would be entitled to a decree. 8. As against the above contention, the learned counsel for the respondent submitted that the plaintiff/ appellant had come forward with a specific case of endorsement by the respondent in the promissory note and when the Courts below had found that the endorsement was not genuine, then there could not be a decree on the basis of an alleged admission in the written statement of the respondent. “The rule is no doubt a plaintiff cannot be allowed to abandon his own case, adopt that of the defendant and claim relief on that footing. “The rule is no doubt a plaintiff cannot be allowed to abandon his own case, adopt that of the defendant and claim relief on that footing. It would certainly be an unusual thing for a Court to allow a plaintiff, who has alleged one state of facts, as against the defendant who has denied that case and alleged another state of facts, to turn round and ask to be allowed to carry on the suit and claim relief on the ground that the defendants statement of facts was true and his own false. T.S.Govindaraj v. Kandaswami Gounder T.S.Govindaraj v. Kandaswami Gounder T.S.Govindaraj v. Kandaswami Gounder (1956)2 MLJ. 578 ; Subramania Mudaliar However, the principle is not applicable where the plaintiff does not seek relief on the basis of pleadings of the defendant, but only on the facts established on the record though they are at variance with his own pleadings. Madhavan v. Kannammal and others Madhavan v. Kannammal and others Madhavan v. Kannammal and others (1999)1 MLJ. 136: (1990)2 L.W. 274; Rajeswari It is not an inviolable formula to be applied blindly and indiscriminately to all fact situations. 9. This is a case where the defendant admits having received Rs.2,000 and executed the suit promissory note. The first endorsement is admitted. He came forward with a further case that he had repaid Rs.1,000 and that there was a balance of Rs.1,200 which he agreed to repay in instalments of Rs.20 per month. He further contended that he had paid a total sum of Rs.100 during three months. These are fortified by his written statement, reply notice Ex.B-1 and pocket book Ex.B-2. As accepted him, if he had paid Rs.20 on 25.4.1978, then the suit having been filed on 5.1.1981, within three years from the date of his admitted payment of Rs.20 would be very much in time. Even according to him there was a balance of Rs.1,200 payable and out of which he had paid Rs.100 and a sum of Rs.1,100 was due as on 25.4.1978. This aspect has been totally lost sight of by the Courts below. 10. In my view, the appellant would be entitled to a decree for this amount as accepted by the respondent. This aspect has been totally lost sight of by the Courts below. 10. In my view, the appellant would be entitled to a decree for this amount as accepted by the respondent. Consequently, the judgments and the decrees of the Courts below are set aside and there will be a decree in favour of the plaintiff for Rs.1,100 payable with interest at 12% per annum from the date of suit till decree and thereafter at 6% from the date of the decree. The substantial questions of law are answered in favour of the appellant to this extent. The second appeal will stand allowed. No costs.