1. This appeal arises in a suit filed on the foot of a promissory note executed by the appellant before us in favour of one Hanmant Reddy, Two persons filed a suit viz., plaintiff No. 1 and plaintiff No. 2 Hanmanth Ready, plaintiff 1 being related to plaintiff 2 as his mother-in-law. The plaint allegation was that the 1st plaintiff had money lending business and that she advanced a sum of Rs. 7350/- to the defendant and took a promissory note in the name of her son-in-law the second plaintiff. She alleged that the amount of the suit promissory note was not repaid in spite of repeated demands and hence the present suit had to be filed.
The second plaintiff stated that the facts set out in the plaint were true and consented to a decree being passed in favour of the 1st plaintiff. The defendant in his written statement contended that the suit promissory note was not true and also pleaded want of consideration. He also pleaded that plaintiff 1 could not sue on the promissory note as she was not the holder thereof. He stated that inasmuch as the 2nd plaintiff had not paid the money, he was not entitled to any decree. The trial court framed the following issues;
1. Whether the suit is bad for misjoinder of parties and causes of action?
2. Whether the suit pro-note is true?
3. Whether the plaintiff No. 1 is entitled to sue as a benamidar?
4. Whether the plaintiff No. 1 has paid any amount to the defendant apart from the suit promissory note?
5. Whether the suit pro-note is not supported by consideration?
6. Whether the suit by the 2nd plaintiff is in time?
7. To what relief is the plaintiff entitled?
2. Plaintiffs 1 and 2 were examined as P. Ws. 1 and 2 in the case and the lower court held on the evidence that the suit pro-note was true. It also held on the evidence that the suit pro-note was supported by consideration. Therefore the only point that the court had to consider was the question of law viz., as to whether the plaintiff No. 1 was entitled to a decree or whether a decree could be passed in favour of the 2nd plaintiff? After considering the law on this point the court decreed the suit with costs in favour of the 2nd plaintiff and dismissed the suit of plaintiff No. 1. This appeal is against the above decree.
3. It is argued by the learned advocate for the appellant that the lower court was wrong in having awarded a decree in favour of the 2nd plaintiff for the simple reason that the relief that was claimed was only by the 1st plaintiff for a decree in her favour and the alternative relief that was claimed in favour of the 2nd plaintiff was made after the expiry of the period of limitation. It was urged that the adding of the relief in favour of the 2nd plaintiff was not in the nature of an amendment to the original plaint because, the plaint was returned to the plaintiff for answering a query of the office as to on what basis a decree was being asked for in favour of the plaintiff No. 1 when the pro-note was in favour of plaintiff No. 2. When the plaint was returned by the court, and represented y the 1st plaintiff she added in the prayer the following words: 'And in the alternative in favour of the 2nd plaintiff.' As has been observed above, it is urged that this could not have been allowed in law, and therefore, it must be regarded as though the suit was one by the 1st plaintiff alone asking for a relief in her favour.
4. The first point that has to be considered is as to whether in a case like this the court could grant a relief even without there being a prayer for the grant of the relief, taking the case as one where the plaintiff did not ask for a relief in favour of the 2nd plaintiff, that is to say, as the case stood before the addition of the words mentioned above. In this connection reference may be made to the provisions of Order 1 Rule 4, C. P. C. which empowers a court to give a judgment in favour of or against one or more of the joint parties for Order 1, Rule 4, Sub-Rule (a) reads as under:
'Judgment may be given without any amendment (a) for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to.'
5. This would clearly show that it is always open to a court to grant relief to any one of the plaintiffs without there being an amendment of the plaint. This is met by the argument on behalf of the learned advocate for the appellant that the present case is not one where such relief could be granted under the above provisions, because plaintiff No. 2 was only a pro forma plaintiff and the suit must be considered to be by one plaintiff No. 1 alone.
Reliance was placed upon a decision of the Bombay High Court in Bhogilal v. Jethalal, AIR 1929 Bom 51 (A). In this case S purchased a certain property from P. S then sold the property to Y who sued P for possession and mesne profits impleading S as a pro forma plaintiff. In the plaint no relief was claimed in favour of S the vendor and it was prayed that the decree may be passed in favour of Y. An amendment of the plaint for the grant of a decree in favour of S was applied for after the claim had become barred. In this case it was held that no relief could be granted in favour of S because of the fact that plaintiff No. 1 was entitled to rents and profits up to a particular period and plaintiff No. 2 became entitled to that only after that period. This case, therefore, cannot help the appellant.
The other case on which the learned advocate relied was the case of Karan Singh v. 'Mohd. Ismail Khan, ILR 7 All 800 (B). This was a suit filed to enforce a right of pre-emption by two co-sharers jointly interested in the village. The relief in this case was claimed by both the plaintiffs jointly and it happened that one of the plaintiffs was the widow of a co-sharer which co-sharer was a member of a joint Hindu family.
The court refused to grant the relief in favour of the widow, one of the plaintiffs, because she had only a right of maintenance out of the share of her husband and she could not be regarded as a co-sharer in the village to entitle her to a decree for pre-emption. This case also is not relevant for the reason that in this case the widow and the ether co-sharer half no identity of interests and without the plaint being amended no relief could be granted.
6-7. We may refer to the other provisions in the Civil Procedure Code which empower the court to grant relief which in the circumstances of this case could be granted. Reference may be made to Section 153 read with Order 7, Rule 7, C. P. C. Section 153 reads as under:
'The court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit, and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding,' and Order 7 Rule 7 says that it shall not be necessary to ask for general or other reliefs which may always be given as the court may thing just to the same extent as if it had been asked for. Even without an amendment the court can grant a relief which would not be inconsistent with the facts of the case. We might in this connection advert to a decision of the Madras High Court in Ramanatha Chettiar v. Maharana Sri Dowlnt Singhi, 1938-2 Mad LJ 534: (AIR 1938 Mad 865) (C). It will, therefore, be clear that the hands of the court are not tied down because of a relief not having been asked for in the plaint. It comes to this that if the addition of the alternative prayer was not made in the plaint, even then, the court could have granted a decree in favour of the 2nd plaintiff if it considered that it was just and proper.
8. The nest argument advanced by the learned advocate for the appellant was that there was no application, either oral or written, on behalf of the plaintiff seeking for an amendment of the plaint and there was not express order by the court permitting the plaintiff to amend his plaint. And as such the plaint could not have been amended. We are disinclined to agree with this contention because the acceptance by the court of such a plaint when it was re-presented to the court would amount to the court having granted the permission to the plaintiff to amend the plaint so as to add a prayer in the alternative.
The fact that there was no specific order by the court would not matter. In a case before the Madras High Court the plaint was returned to the plaintiff for properly valuing the properties claimed. When he represented the plaint he struck out some of the properties to bring the suit within the jurisdiction of the court and it was held that there was nothing illegal in the amendment and that it was also competent for the court to accept such amended plaint. It was further held that unless there was anything curtailing the powers of the court, the court had an inherent power to adopt the procedure which tends to facilitate justice. Vide Karum Bayira v. Authimoola, ILR 33 Mad 262 (D).
As in the case now referred to in the case under consideration the plaint was returned to the plaintiff calling upon him to say as to under what circumstances he asked for a decree in favour of the 1st plaintiff who was not the promisee. The plaint was represented adding the alternative prayer for a decree of the 2nd plaintiff. The 2nd plaintiff was already on record. Under those circumstances the court thought that accepting the plaint with the amendment was not doing an act which was not allowed by law. That apart, the powers vested in the court under Order 6 Rule 17, C. P. C. are very vide and the court can always permit the plaintiff to amend the plaint where the cause of action is not different.
Here there is no change in the character of the suit. The alternation in the relief claimed does not change the character of the suit and therefore even at this stage, it is open to us to permit an amendment of the plaint by addition of a new relief. Once this is regarded as an amendment of plaint on permission having been granted by the court, such an amendment would date hack to the filing of the suit and no question of limitation arises. Further, if the necessary facts and circumstances have been set out in the plaint as have been done in this case, there is no bar to the grant of relief which has not been asked for, if the circumstances justify the grant of such relief.
In this case in paragraph 6 of the plaint it is set out that the 2nd plaintiff admits the right of the 1st plaintiff, and consent to a decree being passed in favour of the 1st plaintiff. The other facts such as the advancing of the money by 1st plaintiff and the promissory note having been taken in favour of the second plaintiff have also been set out. Under such circumstances there can be no objection to a decree being passed in favour of anyone of them. The 2nd plaintiff is the holder who alone can sue under the Negotiable Instruments Act. He is one of the plaintiffs and, therefore, the decree could he passed in his favour. The fact that he has not paid the consideration under the suit promissory note would not matter as consideration can pass from a third party.
The receipt of consideration by the defendant under the promissory note is well established. In this connection we would refer to a decision of the Supreme Court in the case of Gopal Krishnaji v. Mohd. Jaffar, : AIR1954SC5 (E), where their Lordships observed that where all facts have been set out in the plaint but the proper relief has not been claimed, an amendment could be allowed at the appellate stage claiming relief in the proper form. In this case the relief has been claimed in the trial court itself. So this case is a much stronger case, in our opinion than the one decided by the Supreme Court.
9. Quite apart from these considerations we think we have the power sitting as an appellate court to grant such relief as the justice of the case may require. Under Order 41, Rule 33, C. P. C. the appellate court has the power to pass any decree which ought to have been passed or pass such a decree as the case may require and such decree could be passed in favour of a party who has not appealed or is not before the court. This power, in our opinion, is an overriding power vested in the appellate court to be exercised where the justice of the case demanded.
10. In conclusion we are of the opinion that the decree passed in favour of the 2nd plaintiff was not wrong. The judgment and decree of the lower court must be upheld and this appeal dismissed with costs throughout.