1. This is a defendant's appeal arising out of a suit for the recovery of money lent upon the basis of a promissory note.
2. The plaintiff in the year 1924 was a clerk in the Horticultural Gardens at Lucknow. The defendant was resident in Lucknow. On 17th October 1924 the plaintiff lent to the defendant a sum of Rs. 1,000. The defendant in respect of this loan executed in favour of the plaintiff a promissory note and a relative receipt acknowledging the receipt of the sum of Rs. 1,000 Under the terms of the promissory note the rate of interest payable by the defendant to the plaintiff in respect of the loan was 12 percent, per annum. So much is a matter of admission between the parties The plaintiff alleges that on 16th October 1927 be was transferred to Saharanpur and on 17th October 1927 the day before the period of limitation expired in respect of the loan of 1924, the loan was renewed, the defendant executing a fresh promissory note and a relative receipt in favour of the plaintiff. The amount for which the promissory note was executed the plaintiff alleges, was Rs. 1,000. The alleged receipt which has been produced by the plaintiff appears to be a receipt for Rs. 1,000. The plaintiff instituted the present suit on the basis of this receipt claiming Rupees 1,000 in the name of principal and Rs. 360 in the name of interest. It is noteworthy that in his plaint the plaintiff makes no reference to the fact that Rs. 400 of the original note had been, in fact, repaid by the defendant on 7th October 1927. It is a fact that on that date a sum of Rs. 400 was repaid by the defendant to the plaintiff.' The plaintiff has endeavoured to explain, however, that Rs. 360 of these Rs. 400 amounted to what was due for the three years in respect of interest upon the original loan. If the plaintiff's averment be accepted as correct therefore upon 17th October the defendant was due to the plaintiff the sum of Rs. 960 and not Rs. 1,000, the sum for which the promissory note was alleged to have been executed. The plaintiff again explains bow-ever that when his wife negotiated the renewal of the promissory note with the defendant on 17th October she handed to the defendant Rs. 40. This brought the amount of the debt due on that date to the plaintiff up to the sum of Rs. 1,000. The defendant stated that he paid the sum of Rs. 400 to the plaintiff on 7th October 1927 and the balance of what was due in respect of the repayment of the loan and interest on 10th October 1927. In support of this averment apart from the oral testimony which was adduced in the Court of first instance, the defendant has produced what he alleges is the original promissory note and the relative receipt of 17th October 1924.
3. The defendant alleged that the receipt which was produced by the plaintiff and upon which he bases the present suit was, in fact, executed in 1924. He explains the matter thus : The promissory note and the relative receipt are written upon printed forms, the blanks being filled in by the person executing the promissory note and the receipt. On 17th October 1924 the defendant Mirza Murad Beg states that he made out on an ordinary form a promissory note and a receipt in respect of the loan of Rs. 1,000 by the plaintiff. When he had completed filling in the form of the promissory note however he found that he made a number of mistakes and in his own words the promissory note had become 'suspicious' (Mashquq ho gaya tha). He therefore made out a new promissory note and a new receipt in favour of the plaintiff. The plaintiff however retained the 'suspicious' promissory note and the receipt as well as the fresh ones which were made out by the defendant. The defendant further avers that on the repayment of the balance of the loan on 10th October 1927 the plaintiff handed to him the second promissory note and the relative receipt made out on 17th October 1924. But the defendant states that the plaintiff had retained in his possession the suspicious promissory note and relative receipt and that he inserted in that receipt the date 17th October 1927. This date having been inserted over the defendant's signature without his consent amounts to a forgery. The defendant contends therefore that the plaintiff's suit must be dismissed as it is based upon a forgery.
4. In support of his allegation that the receipt is a forgery the defendant led evidence to show that the plaintiff had attempted to file a suit for the recovery of money on the basis of the 'suspicious' promissory note and receipt in Lucknow sometime in the year 1928 and that the plaintiff had been advised by his legal advisers that a suit upon the basis of such a document could not succeed. It is a fact that the promissory note which forms part of the same document as the receipt upon which the present suit is based has never been produced in Court by the plaintiff. No satisfactory explanation has been given for its non-production. The plaintiff says in evidence that the promissory note was mislaid. His wife says that it was lost two years ago. The evidence of the plaintiff is quite inconsistent with the evidence of his wife upon this point. Apart from that however the plaintiff has produced no evidence to show how, when, why and under what circumstances the promissory note was lost. The defendant further proved by documentary evidence which is not disputed that the plairitiff had admitted on oath in another suit on 13th October 1927 that on 10th October 1927 the debt had been fully repaid to him by the defendant. A copy of the plaintiff's statement on oath to this effect which is Ex, D was produced in the Munsif's Court. The learned Munsif upon the evidence, found in favour of the defendant and dismissed the suit. In the course of his judgment he states:
To sum up the whole case in a nutshell, the non-production of the pronote, the want of reliable evidence to prove its alleged loss, the admission of the plaintiff that the pronote was defective, combined with the admission of the plaintiff that the pronote of 1924 had been paid off also go a long way to show that the pronote of 1924 could not have been renewed in 1927.
5. The plaintiff alleged that the document produced by the defendant which the latter avers is the pronote and relative receipt of 17th October 1924 is a forgery, and Learned Counsel for the plaintiff has contended that it is not open now at this stage to question the averment that it is a forgery because there is a finding that it is a forgery in the judgment of the lower appellate Court. He has further contended that it is not open now to question his averment that the receipt upon which he bases his suit is genuine because there is a finding that it is genuine in the judgment of the lower appellate Court. It is true that there are these two findings in favour of the respondent in the judgment of the lower appellate Court. These two findings are findings of fact which cannot be disturbed in second appeal. Learned Counsel for the appellant, however, has contended that the plaintiff was not entitled to bring his suit upon the basis of the receipt alleged to have been executed in 1927, be it genuine or be it a forgery, in the unexplained absence of the promissory note which was the main part of the document upon which the promissory note and the receipt were executed. In support of this contention he has referred to two decisions : Nazir Khan v. Ram Mohan 1931 All. 183 and Haji Anwar Khan v. Mohammad Khan 1929 All. 105. These two decisions undoubtedly support the contention of Learned Counsel for the appellant. Learned Counsel for the respondent, however, has referred to a number of other authorities in which the principle is established that where the promissory note is in respect of an antecedent dobt or obligation and the promissory note is inadmissible in evidence for one reason or another, for example, if it is insufficiently stamped or if it is simply not produced by the plaintiff, it is open to the plaintiff to recover the amount due to him from his debtor by proving the antecedent liability; in other words by basing his suit upon a cause of action other than the promissory note.
6. The plaintiff in the present suit, however, has not based his suit upon the antecedent liability of 17th October 1924. Ha has based his suit upon a receipt alleged to have been executed on 17th October 1927. That is the cause of action which he alleges. By that receipt of 17th October 1927, therefore, he must stand or fall. The main question for decision, therefore, is whether in the circumstances of this case the plaintiff is entitled to rely upon the document alleged to have been executed in 1927 which the lower appellate Court has found to be genuine. There does not appear to be any direct authority upon the question as to how far, if at all, a party is entitled to rely upon a document the main portion of which he is concealing from the Court. There can be no doubt that the main portion of the document which was alleged to have been executed on 17th October 1927 is the promissory note itself. It would contain a promise to repay the loan and a promise to pay interest and such other conditions which may have been agreed upon between the parties. In other words, the promissory note is the plaintiff's main document of title, that is, the best evidence of the debt which he claims is due by the defendant. He has failed to produce this document and relies upon a relative receipt. In our opinion he is not entitled to do this. Where a party institutes a suit in a Court of law for the recovery of money due upon the basis of a promissory note ha must produce that promissory note or give a satisfactory explanation as to why he is unable to produce it. If there is a satisfactory explanation of the absence of the promissory note then no doubt in justice and in equity he is entitled to rely upon a relative and ancillary document such as a receipt which formed part of the same document upon which both the promissory note and the receipt were inscribed as in the present case. But where he is concealing the promissory note from the Court withholding from the Court information which the Court is entitled to have in consideration of the dispute between the parties he is not entitled to rely upon any such relative and ancillary document as the receipt which relates to the promissory note. The party having recourse to law to enforce a liability against another party must produce the best evidence available. The best evidence available in the present instance is the promissory note alleged to have been executed on 17th October 1927. If a party is unable to produce the best evidence he must give some satisfactory explanation of his inability. The plaintiff has failed to give a satisfactory explanation as to the absence of the promissory note in the present case. There is no finding in the judgment of the lower appellate Court upon this point in favour of the plaintiff. The finding of the trial Court is against him.
7. Learned Counsel for the respondent has contended that there is no recorded authority in support of the proposition adumbrated above. That may well be. Cases where a party comes into a Court relying upon one part of a document, the main part of which he has deliberately destroyed or is concealing from the Court must of course be infrequent. It is not surprising therefore that the books contained no decision exactly in point, but we lay down without hesitation the rule that the Courts should refuse to exercise their powers in favour of a litigant who is deliberately concealing important material and relevant information. In the result we hold that inasmuch as the plaintiff has bused his case upon a receipt and not upon the promissory note and has concealed the promissory note from the Court he is not entitled to succeed. We allow the appeal, set aside the order of the lower appellate Court and restore the order of the Court of first instance. The defendant will have his costs throughout.