Mt. Bibi Nasiban vs Eknam Narain Singh

Foster, J.—The petitioner was defendant in a suit which was decreed in the Small Cause Court of the Subordinate Judge at Gaya. On the date fixed for filing written statement she applied for time but it was refused and the suit proceeded in her absence. The suit was for a. sum of money duo upon a bond executed by the husband of the petitioner, who was also (by another wife) father of two minors who were also defendants. These minors appeared through their guardian ad-litem who examined one witness on behalf of the defence. The petitioner has put forward several grounds for urging that the decision is contrary to law, one of which was that the bond was insufficiently stamped. This contention was an over sight, for in the order-sheet we see that the stamp duty and penalty were realised and the document was admitted. The only ground on which this petition is seriously maintained is the ground that the suit is premature. The bond was executed on the 15th Chait 1329 Fasli, for Rs. 374 and the due date of payment was mentioned therein as the 30th Jeth 1331 Fasli. So the suit which was instituted on the 27th January, 1923, was prima facie prior to the due date, and that due date should be ordinarily the date of the cause of action. This matter is adverted to in the plaint, where the plaintiff states that the entry of the date of re-payment was wholly illegal and could not bind the plaintiff. Moreover, it was stated that the defendants are making away with the property of the deceased Sheikh Sharfuddin who executed the bond and took the advance.

Curiously enough the evidence was taken and arguments heard and the suit decided without any reference to this fact, which appeared on the face of the pleadings, that the suit was premature. The cause of action given in the plaint is dated the same as the bond and the advance of money. It is obvious that if the bond is to be taken as the basis of the plaintiff''s claim no decree can be given, for the simple reason that neither party contemplated any performance of the contract on the part of the debtor before the 30th Jeth 1331 Fasli. The contract was admittedly committed to writing and if the plaintiff wished to show that he had been defrauded in any way or that for some reason or other he could escape the provisions of Sections 91 and 92 of the Indian Evidence Act, it was for him to state the reasons in his plaint and to prove the facts in evidence. The minor defendants had, as we see, denied any liability to the debt. This fact is to be found mentioned in the judgment and it beloved the learned Subordinate Judge to consider the pleadings especially when he was passing a judgment ex parte against one defendant and contested against two minors. It appears to me, therefore, that the petitioner defendant has been subjected to a liability to which she was not subject legally, and that the judgment is, therefore, contrary to law. For these reasons I set aside the judgment and allow costs in both Courts. The suit will be dismissed with cents in this Court to the petitioner. Hearing fee one gold mohur.

The whole decree is set aside, though no doubt I have not been moved by or on behalf of the minor defendants. In my opinion, the decree being found to be an illegal decree, the exercise of revisional jurisdiction n this matter is subsidiary to the jurisdiction with which I am invested by the petition itself read with the terms of Section 25 of the Small Cause Courts Act.