1. This application is for the revision of the order passed by the Judge, Small Cause Court, Meerut, on the 27th of April, 1927.
2. It appears that the defendant, who is the applicant before this Court, was sued on foot of a promissory note by the respondent. The promissory note recited that on settlement of a certain account, a sum of Rs. 300 was found due by the defendant and he was accordingly giving the promissory note to secure the said amount. The defendant, in his defence, wanted to prove that at the date of the settlement of account there was a sum of Rs. 500 outstanding against him. His case was that he had deposited in the plaintiff's treasury a sum of Rs. 500 but the payment could not be traced. It was accordingly arranged that after allowing a set off of Rs. 200 due to the defendant, the latter should execute the promissory note for Rs. 300. It was further agreed that in case the payment of the aforesaid, sum of
3. Rs. 500 was established, the plaintiff would be exonerated from his liability on the promissory note. The defendant sought to substantiate his plea, viz., the sum of Rs. 500 had beep subsequently traced and that, therefore, his liability on the promissory note ceased.
4. The learned Judge, Small Cause Court, did not allow the defendant to adduce any evidence on the ground that this would be contrary to the provisions of Section. 92 of the Evidence Act. He did not cite any case as authority for the proposition, but in this Court the learned Counsel for the respondent has relied on the case of Sri Ram v. Firm Sobha Ram-Gopal Rai (67 Ind. Cas. 513; 20 A. L. J. 315; 4 U. P. L. R. (A.) 153; 44 A. 521; A. I. R. 1922 All. 213. That case has been dissented from in the case of Firm Sheo Prasad-Ram Prasad v. Gobind Prasad 100 Ind. Cas. 332; 25 A. L. J. 305; A. I. R. 1927 All. 292; 49 A. 464. Both the judgments are by two learned Judges of this Court. In this conflict of opinion I think I am allowed to express my own view of the case.
5. It appears to me that proviso I of Section. 92 of the Evidence Act permits a party to a contract reduced into writing, to establish, among other matters, ' want or failure of consideration'. The defence in this case amounted to nothing but a plea of want or failure of consideration. The burden of proof was undoubtedly put on the defendant but there was, in my opinion, nothing in the law to prevent him from establishing his plea.
6. I accept the application, set aside the decree of the Court below and remand the suit to it with the direction that it should be re-admitted on its original number in the register and disposed of according to law. Costs here and hitherto will abide the result.