Duggempudi Nagamma vs Tirumala Reddi Venkata Reddi and Others

Sadasiva Aiyar, J.—Paminathan Chetty v. Palaniappa Chetty 26 Ind. Cas. 228 : 17 N L R 56 quoted for the respondents only shows that

the claim on a promissory note, given for an existing liability is based on a different cause of action from that on the said existing liability. It does not

decide that a plaint cannot include both such claims in the alternative. If a plaintiff sues on one of such causes of action and the right to sue thereon

is not free from doubt, it is always open to the Court (and in my opinion, it is desirable to do so to put an end to litigation as far as possible) to

direst the plaintiff to amend the plaint, so as to convert it into a suit baaed on both causes of action, or treat it as so amended, and then to decide

the suit once for all.

The Court of first instance in this case held that no note was ever executed and hence it decreed the claim of the plaintiff based on the original

cause of action alone.

The lower Appellate Court held that a promissory note was executed for the debt and hence the plaintiff''s suit based solely on the original cause

of action ought to be dismissed. It refused to go into the question whether more than Rupees 300 has been paid towards the plaintiff''s claim

whether based on the original cause of action or on the promissory note.

I think that this is an unsatisfactory mode of disposing of a litigation like this. I would, therefore, treat the suit as based on both claims in the

alternative (the plaint being treated as amended accordingly) and direct the suit to be disposed of on the merits after dealing with the 6th issue. [The

payment of Rs. 300 found by the District Munsif not having been disputed by the plaintiff, the question to be decided under that issue has become

restricted to what further amounts (if any) have been paid.]

As pointed out in Chokkalingam Chetty v. Annamalai Chetty 34 Ind. Cas. 417, if the defendant is anxious that, in case the promissory note is

not returned to him, he might become liable to third persons who might become holders in due course of the negotiable instrument, the Courts

could obtain proper security from the plaintiff, before awarding the amount (if any,) found due to the plaintiff. The plaintiff in this case has

expressed her willingness through her Counsel to give a proper indemnity bond, if so directed, for the amount (if any) which may be decreed to

her.

The decree of the lower Appellate Court dismissing the suit is set aside and the case is remanded to that Court for disposal in the light of the

above observations. All costs will be provided for in the fresh decree to be passed in that Court.

Spencer, J.

I agree.