Tek Chand, J.
1. This is plaintiff's appeal from the judgment and decree of Subordinate Judge First Class who dismissed his suit which was for the recovery of Rs. 27,250 inclusive of interest, on the basis of a pronote for Rs. 25,000 dated 13th of May, 1949. There are three defendants in this case. Defendant No. 1 is the partnership firm Amin Chand Mohan Lal and defendant Nos. 2 and 3 are the two partners Mohan Lal Sayal, and Amin Chand Puri.
According to the plaint, Moha Lal defendant No. 2 had executed a pronote (P/A) for Rs. 25,000 in favour of the plaintiff at Amritsar on 13th of May, 1949, for cash received, and agreed to pay the amount on demand with interest at 3 per cent per annum. It was stated that the amount had not been paid despite repeated demands. On this basis it was prayed that a decree for Rs. 27,250 be passed in plaintiff's favour against the defendants with costs and future interest. The suit was filed on the last day of limitation.
(2) Amin Chand defendant No. 3 who is the principal contesting respondent before us, in his written statement, denied the above allegations and also raised a preliminary objection that the Court at Amritsar had no jurisdiction, as the alleged pronote was not executed at Amritsar. On merits, defendant No. 3 stated, that the pronote was never executed as alleged and even if execution was proved, he did not admit that defendant No. 2 had any authority to borrow any loan or execute any pronote on behalf of the firm, as under the terms of partnership, neither of the partners had any authority to raise a loan or execute a pronote.
It was also pleaded that no cash was ever advanced by way of loan to the defendant and the partnership firm had been dissolved on 5th of May, 1950, and at the time of taking of the accounts there was no entry in the account books of the firm relating to the transaction in question.
(3) It was then said, that the transaction was bogus and entered into without any consideration and with an ulterior object, and that further inquiries made by defendant No. 3 had revealed the following information. The defendant-firm used to supply to the military at Jullundur Cantonment certain articles on the basis of tender contracts entered into with 'C. R. I. A. S. C.,' Jullundur Cantonment. These initials stand for 'Commander Royal Indian Army Supply Corps.' In that office P.W. 1 Sampuran Singh was a clerk who was known to wield a good deal of influence in the matter of securing contracts for the tenders, because of his friendship with the immediate officers concerned. Defendant Mohan Lal was on friendly terms with Sampuran Singh and the pronote appeared to have been executed by Mohan Lal in the name of the plaintiff as a benamidar as the plaintiff was stated to be a relative of Sampuran Singh.
The plaintiff had no means to pay the sum of Rs. 25,000. He had not advanced any sum and the partnership did not stand in need of borrowing any amount. The pronote was written in order to enable Sampuran Singh to make an illegal gain for himself. In the alternative, it was also averred that Mohan Lal defendant might have executed the pronote without consideration after the dissolution of their firm in order to wreak vengeance on defendant No. 3. The partnership never stood in need of any loan. The firm, it was alleged, had been dissolved since 5th of May, 1950, and a deed of dissolution had bee executed.
(4) Defendant No. 2 Mohan Lal also traversed the averments in the plaint. He added that in January, 1949, Sampuran Singh had assured him that he would help him in securing military contracts for the supply of potatoes and fruit at Ambala and onions at Jullundur, but Sampuran Singh had demanded a sum of Rs. 25,000 for securing the contracts. As the firm was not possessed of sufficient cash, Sampuran Singh got a pronote executed at Jullundur in favour of the plaintiff who was said to be his relative, for the illegal purpose of securing the contracts. At the time of the execution of the pronote no date had been entered.
Sampuran Singh had agreed to get a contract for the supply of potatoes at Ambala for the period from 1st of April, 1949, to 30th of September, 1949, at higher rates tendered by the defendants and by getting the lower rates tendered by another firm Messrs. Shiva Brothers rejected. It was stated that the pronote had been executed with the object of getting tenders of the defendant-firm accepted and contract secured, but the condition was that in case the contract secured, but the condition was that in case the contract was finally approved of and if the supply was made, the pronote amount would be paid on the completion of the contract from out of the profits thus accruing but not otherwise. This defendant stated that he never came into contract with the plaintiff who had never paid any money nor had he the means to do so.
(4a) The trial Court framed the following issues:
1. Has this Court jurisdiction to try the suit?
2. Was the pronote in suit for Rs. 25,000/- duly executed by Mohan Lal, defendant No. 2, as the proprietor and for the defendant firm No. 1, on 13th May, 1949, in favour of the plaintiff?
3. If issue No. 2 is proved, was the pronote in suit without consideration?
4. Is the defendant No. 3 not liable for the debt in suit, if so, how?
5. Was the pronote in suit executed for any illegal purpose and against public policy? If so, how and to what effect on the suit?
6. Is the plaintiff not entitled to the interest claimed? If so, how?
Later, two more issues were framed'
6-A. Whether the suit is time barred.
6-B. Was there any agreement between Mohan Lal, the executant of the pronote, and S. Sampuran Singh, that the pronote amount would be realised only if the contract of the supply of potatoes was accepted?
(4b) As the issues were overlapping, the trial Court was of the view that the real controversy between the parties depended on answer to two questions:
(a) Whether the pronote was executed by defendant No. 2 on his own behalf and on behalf of the firm on 13th of May, 1949, as alleged; and
(b) whether a sum of Rs. 25,000/- was actually paid to defendant No. 2 or whether the pronote was passed by way of an illegal gratification for Sampuran Singh.
(5) The trial Court came to the conclusion that the pronote had been executed by Mohan Lal on behalf of the firm. On the second question it was of the view that the pronote was without was without consideration and consequently dismissed the plaintiff's suit.
(6) Though arguments have been addressed to us on a number of points, but the main controversy has centered round issue No. 3 as to the pronote being with or without consideration.
(7) On behalf of the plaintiff-appellant, it was argued that in view of the provisions of S. 118(a) of the Negotiable Instruments Act, it was for the defendants to rebut the presumption that the pronote was for consideration. Section 118(a) is as under:
'Until the contrary is proved, the following presumption shall be made:
(a) that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration;
* * * *'
(8) This section provides a special rule of evidence in the case of negotiable instrument contrary to the case of an ordinary contract. Party denying consideration has to prove want of consideration or, in other words, to rebut the presumption that the negotiable instrument was made or drawn for consideration. The statutory presumption in favour of there being consideration for every negotiable instrument continues unless it is rebutted.
(9) The distinction between the language of Section 114 of the Indian Evidence Act, and that of Section 118(a) of the Negotiable Instruments Act is significant. The words 'may presume' in Section 114, Evidence Act, leave the matter to the discretion of the Court, either to make or refuse to made a presumption inter alia 'that a bill of exchange accepted or endorsed, was accepted or endorsed for good consideration', vide illustration (c). The presumption is optional depending upon the Court's unrestricted discretion under Section 114.
Under this section, Court may not, but under Section 118(a), Negotiable Instruments Act, the Court is bound to start with the presumption in favour of passing of consideration. Under Section 114, Evidence Act, therefore, the Court has unfettered discretion to presume a fact, as proved, until it is disproved, or ignore such a presumption and call for proof of it. But when the statute requires, as in the case of Section 118 of the Negotiable Instruments Act, that the Court shall presume a fact, the Court has no option left, and it has to treat the fact as proved, until the party interested in disproving it has led evidence in support in support of its non-existence.
On the basis of this, the appellant's counsel argues that the trial Court had struck out the evidence of defendant No. 1 and the evidence led by defendant No. 3 by itself is insufficient to discharge the onus placed upon him. He maintains, that whatever lacunae or contradictions there may be in the plaintiff's evidence on the question of passing of consideration, he cannot be non-suited on that ground, in the absence of convincing evidence led by the defendants to prove want of consideration.
(10) In Mst. Zohra Jan v. Mst. Rajan Bibi, 48 Pun Re 1915: (AIR 1915 Lah 86 (2)), it was held by a Division Bench of the Punjab Chief Court that although the initial presumption under Section 118(a) of the Negotiable Instruments Act was that the promissory note was made for consideration, yet having regard to the fact that the note itself stated that Rs. 30,000/- was borrowed in cash without interest and the plaintiff was forced to admit that it was incorrect, it must be held that initial presumption had been rebutted, and that the onus had been shifted on to the plaintiff to prove that the promissory note was executed by the defendant for consideration.
(11) Again in Siraj-ud-Din v. Mst. Champo, 3 Lah LJ 439: (1 1921 Lah 148), Martineau, J., following the above decision, held that where the statement of the plaintiff's agent with regard to consideration for the promissory note was entirely inconsistent with the plaintiff's allegation in his plaint, that was sufficient to shift the onus on to the plaintiff.
(12) In Sunder Singh v. Khushi Ram, AIR 1927 Lah 864, Tek Chand, J. also held that where, in a suit on a promissory note, plaintiff set up different stores as to consideration at different stages, the burden of proving consideration shifted on to him.
(13) in this case the contention of the plaintiff in the plaint and even at the earlier stage of the trial was that he had paid Rs. 25,000/- in cash to defendant No. 1. When the plaintiff appeared as P.W. 4, though in examination-in-chief he had said that he had paid Rs. 25,000/- in cash to Mohan Lal on behalf of the firm, he took a complete somersault in the cross-examination, and said, that he had absolutely no proprietary right to the money but was merely a benamidar of the pronote, that it was Sampuran Singh P.W. 1 who had brought the money and had given it to him, and that he did not know Mohan lal, the executant of the pronote. According to the three authorities referred to by me above, the initial presumption in view of the contradictions noted above stands rebutted.
(14) On behalf of the appellant, our attention has been drawn to a decision of the Privy Council in Ch. Gur Narayan v. Sheolal Singh, AIR1918 PC 140, where it was held that a benamidar could institute a suit in respect of the property although the beneficial owner is no party to it. But this is no authority on the question of discharging of onus by the defendants, where there is important inconsistency in the matter of passing of consideration between plaintiff's case as set up in the plaint and as put forth in the evidence.
(15) By a Division Bench of the Bombay High Court in Tarmohammed Haji Abdul Rehman v. Tyeb Ebrahim, 51 Bom LR 219: (AIR 1949 Bom 257), the view expressed in the Punjab decisions referred to above was dissented from as not being in consonance with the plain language of S. 118(a) of the Negotiable Instruments Act. It was, however, conceded that if a particular consideration is mentioned in a negotiable instrument, and that consideration is found to be false and some other consideration is set up, that is a factor which the Court would take into consideration in deciding whether the defendant had discharged the burden case upon him under Section 118(a).
(16) A defendant may discharge the burden of proof placed upon him under Section 118(a), either by producing definite evidence, showing that consideration had not passed, or, by relying upon facts and circumstances of the case, and also by referring to the flaws in the evidence of the plaintiff and may then contend that the presumption has been rebutted. If the plaintiff goes into the witness-box, and the result of his evidence is, that he fails to establish the passing of consideration, and the Court is thus satisfied, that the plaintiff did not give the consideration which he alleges, the defendant can certainly avail himself of the contrariety and the provisions of Section 118(a) are not thereby entrenched upon; vide Narayana Rajasthan v. Venkatapayya. AIR 1937 Mad 182 (187); Muhammad Shafi Khan v. Muhammad Moazzam Ali Khan, AIR 1923 All 214; and Bishambar Das v. Ismail, AIR 1933 Lah 1029.
(17) But the burden of proof, on which, considerable emphasis has been laid by the learned counsel for the appellant, acquires importance, only where, by reason of not discharging the burden which was put upon a party, it must eventually fail. Where not only parties have joined issue, but have led evidence the two versions can be gone into, with a view to determine which way the weight of the evidence turns. In such a case the abstract question of onus probandi loses its significance, as the Court determines the controversy, on the weight of the evidence led on the contested issue, and not upon the abstract question of burden of proof, which becomes purely academic.
Of course, if the mind of the Judge, determining the suit, is left in doubt as to the point on which side the balance should fall in forming a conclusion, the doctrine of onus probandi will become a determining factor: vide Yellappa Ramappa v. Tippanna, AIR 1929 PC 8; and Narayan Bhagwantrao v. Gopal Vinayak, AIR 1960 SC 100 (105).
(18) Mr. Faqir Chand Mital, learned counsel for the respondent (Amin Chand defendant No. 3), has contended that the special rule of evidence laid down in Section 118(a) of the Negotiable Instruments Act was intended to apply only as between the parties to the instrument or those claiming under them, and in other cases, the presumption can only be in accordance with the provisions of Section 114, illustration (c) of the Evidence Act, and it is for the Court to apply the presumption or not according to the circumstances.
He, therefore, argues that his client Amin Chand defendant No. 3, who was not an executant of the pronote, cannot be adversely affected by the rule of burden of proof, as contained in Section 118(a) of the Negotiable Instruments Act. There is support for this proposition in the judgment of Varadachariar, J. in AIR 1937 Mad 182 (185). Reliance was also placed on the decision of the Privy Council in Firm Sadasuk Janki Das v. Sir Kishen Pershad, AIR 1918 PC 146.
(19) Our attention was also drawn to a Full Bench decision reported in Abdul Shakur v. Kotwaleshwar Prasad, ILR (1956) 2 All 347: ((S) AIR 1956 All 403), wherein Agarwala, J. observed:
'The presumption raised under Section 118 occurs in chapter 13 which relates to special rules of evidence relating to negotiable instruments. Having regard to the fact that the Act itself confides the law for the purposes of dealing relating to negotiable instruments, the presumptions embodied in Section 118 must in their very nature have reference to parties to a negotiable instrument, and the presumption raised under the section must apply when the question arises between those parties.' (p. 365 of ILR All): (p. 407 of AIR).
But this view was not shared by the other two Judges, vide pp. 370 and 389 (of ILR All): (pp. 408 and 403 of AIR).
(20) The view expressed by Varadachariar, J. appears to be more in accord both with the verba and the sententia legis. In the case of a pronote the executant admits consideration and it is for him to dislodge a presumption which his own admission on the face of the pronote carries, but when another person who is neither the executant of the pronote nor is endorser or negotiator, he cannot be deemed to be in possession of the knowledge as to the passing of the consideration, or of the circumstances, under which, it may be deemed to be in possession of the knowledge as to the passing of the consideration, or of the circumstances, under which it may be deemed to have passed.
It does not appear to have been the intention of Section 118(a) to fasten liability on a person who was neither the maker nor endorser, etc. of the instruments; and expect him to discharge the onus of proving failure of consideration, in order to escape the consequences of an adverse decision. In such a case the ordinary rule of common law should apply and the party seeking to enforce his claim against his opponent should establish, that the transaction, for which he is being held liable, was made for good consideration.
(21) But for the purposes of this case, the controversy between the two views is more academic than real. At the time of the execution of the pronote, Amin Chand admittedly was partner of Mohan Lal in the firm styled as Messrs. Amin Chand-Mohan Lal. The opening words of the pronote are:
'We, Messrs. Amin Chand-Mohan Lal, contractors, residents of Ambala Cantonment, do hereby declare as under:
(22) At the bottom of the pronote, Mohan Lal signed for Amin Chand-Mohan Lal. The receipt Exhibit P. B. is counched in similar language. In the eye of law, the pronote was executed by Mohan Lal as representing himself and his partner Amin Chand and so long as Mohan Lal had a right to do so, both he and his partner Amin Chand would be deemed to be expectants. Every partner is an agent of the firm, and his other partners for the purpose of the business of the partnership; and the acts of every partner bind the firm and his partners, unless he in fact had no authority to Act for the firm and the other person was aware of this.
When a negotiable instrument is drawn by a partner in a trading firm, the other partner is not any the less liable because his name does not appear on the fact of the instrument. Vide Bunarsee Dass v. Gholam Hossein, 13 Moo Ind App 358; and Moti Lal ., 32 Bom LR 1571: (AIR 1930 PC 238). To such a relationship the maxim, qui facit par alium facit per se, applies and a person who does an act through another is deemed to do it himself. That being the position, Amin Chand's case is not governed by the rule enunciated by Varadachariar, J. in AIR 1937 Mad 182 (187).
(23) The trial Court struck out the defence of Mohan Lal defendant-respondent and the learned counsel for Amin Chand defendant-respondent has also urged that as a result of striking out of the defence, which was contrary to law, his client has been materially prejudiced. This was done in the following circumstances:
On the 10th of March, 1953, Amin Chand made an application under O. 11, R. 18, Civil Procedure Code, praying that the plaintiff might be ordered to allow inspection of his pass books, cash books, kachi bahis and pakki bahis from 1949 onwards, and of all accounts relating to Jaura Engineering Works, Putli Ghar, Messrs. D. L. Jaura and Sons and to the business which was carried on the name of C. L. Jaura, Arms Merchants, Queens Road, Amritsar. It was stated in the application that inspection of these books was necessary for ascertaining--
Whether the plaintiff had got the amount which he was alleged to have advanced and from where it was procured. The object of the defendants was to show that the plaintiff was not in a financial position to advance the amount of the pronote as alleged. But the Subordinate Judge by his order dated 18th of March, 1953, rejected the petition the ground that it was 'most vague and indefinite'. He, however, remarked that if details of the books sought to be examined were furnished, he would be willing to consider the matter on merits.
(24) On 18th of March, 1953, the plaintiff produced his first witness, P.W. 1 Sampuran Singh who described himself as attorney of Messrs. Kisan Brothers of Jullundur. In his examination-in-chief, he had stated that Rs. 25,000/- were paid in his presence to the executant of the pronote by the plaintiff. Immediately on the conclusion of the examination-in-chief of this witness, Shri Gurdas Mal, Advocate for defendant No. 2, expressed his inability to cross-examine the witness, for the reason, that the documents which had been summoned from Messrs. Kisan Brothers, who were the employers of the witness, had not been received by the Court.
The Subordinate Judge ordered that as he could not see any relevancy of the aforesaid documents at the time, he directed the counsel to cross-examine the witness. In the cross-examination that followed P.W. 1 Sampuran Singh admitted that he was employed in the department of Commander Army Service Corps and was working under Lt. Co. Jagjit Singh Chima. He admitted that the defendants were approved contractors for the supply of various articles to the troops.
(25) After the witness had been cross-examined for a short while, statement of Shri Gurdas Mal and of Shri Hans Raj counsel for defendants 2 and 3 was again recorded. They had stated that they had filed a list of documents on 10th of January, 1953, which they had summoned from the persons mentioned in the list. They stated that they could proceed with the further cross-examination of Sampuran Singh only when the documents were received. The documents had been summoned to show that the witness, owing to his influence with Lt. Co. Jagjit Singh Chima, had got the tender of the defendant-firm recommended, and that the sum of Rs. 25,000/- was to be paid to the witness by way of illegal gratification, and the witness had got the pronote executed not in his own name but in that of the plaintiff. When this, request was made, the trial Court burdened the defendants with Rs. 50/- as conditional costs and directed them to take dasti processes to the military office concerned and to get the witnesses served. The defendants were directed to see that the documents wanted by them were produced by 7th of April, 1953, and the witness was required to appear on 23rd of April, 1953.
(26) On 7th of April, 1953, which was not a date fixed for recording of any evidence, Mohan Lal defendant submitted an application, stating that he had called on the office of C. A. S. C., East Punjab Area, Jullundur Cantonment, on 2nd of April, 1953, to serve summons on the record-keeper of the Commander Army Supply Corps-new designation of C. R. I. A. S. C.-to give evidence personally and to send documents in Court before 7th of April, 1953. It was stated that the record-keeper refused to accept the summons and wanted that the summons should be sent to that office by the Court through the General Officer Commanding, who along could grant the necessary permission to the record-keeper to attend the Court with any official documents.
For this reason, the applicant prayed, that the summons to the record-keeper be sent through the General Officer Commanding. On that date, the trial Court ordered that the defendant was to be blamed for want of promptness in not getting the witness served and the defendant was burdened with costs of Rs. 40/-. The defendant was directed to obtain the documents mentioned in the petition for 23rd of April, 1953.
(27) This order seems to me to be indefensible, particularly when service was being deliberately refused by the record-keeper, and failure to get the documents produced in Court, could not be attributed to any omission or want of promptness on the part of the defendant who was doing his best to get service effected. This rather shows keenness on the part of the defendant and his counsel to get the documents produced, as it was expected, that the defence story would be borne out by the records of the Military Department.
On 23rd of April, 1953, which was the date fixed for further cross-examination of the witness, the amount of costs was increased from Rs. 40/- to Rs. 60/-. The Subordinate Judge discharged Sampuran Singh, so far as the cross-examination by Shri Gurdas Mal was concerned, but required him to come on 5th of May, 1953, for being cross-examined by Shri Mital counsel for defendant No. 3. If for cross-examination by the counsel for defendant No. 3, the witness had to come on 5th of May, 1953, there was no point in enjoying counsel for defendant No. 2 from cross-examining him.
On 5th of May, 1953, the counsel for defendant No. 2 stated that he would pay the costs only if the record-keeper of the military authorities appeared with the required documents. It seems that service was being deliberately avoided by the record-keeper in charge of the documents, which were required to be produced from the military authorities, and the Subordinate Judge, instead of insisting on the military authorities producing the documents, went on burdening the defendants with costs for no fault of theirs.
(28) On 5th of May, 1953, and application was made by the plaintiff under O. 17, R. 3, and Section 151, Civil Procedure Code, stating that as costs had not been paid in compliance with the orders of the Court, the defence should be struck out and his suit should be decreed. The Subordinate Judge, by his order dated 6th of May, 1953, thought that in view of the provisions of Order 17, Rule 3, Civil Procedure Code, he had no option but to strike out the defence of defendant No. 2 which accordingly he did.
(29) The provisions of law contained in O. 17, Rule 3, and Order 11, Rule 21, Civil Procedure Code, are penal in their nature and must, therefore, be construed strictly. In view of the stringency of these provisions and of the drastic consequences that follow they should be applied only when the facts admit of no doubt, and the conduct of the party at fault, cannot be excused.
In a case where a party to a suit has paid the process-fee for summoning the witnesses and has done all that lay in its power to get the production of the documents, it is for the Court and its officers who re responsible for effecting service, to see that the witnesses attend with the documents called; and non-attendance of witnesses for want of service, or for refusal to be served, or for non-production of documents, does not justify the penalizing of the party, in a case, where, the fault lay either with the process-serving agency or the witness summoned.
Any adjournment resulting thereby cannot be treated as 'time granted to one party' within the meaning of O. 17, R. 3, Civil Procedure Code, vide Harjas Rai v. Narain Singh, 51 Pun Re 1915: (AIR 1915 Lah 439); and Karam Chand v. Jinda Ram, AIR 1924 Lah 404.
(30) The provisions of O. 17, R. 3, Civil Procedure Code, do not justify the striking out of the defence. In defendant is at fault then all that the Court can do is to decide the suit forthwith.
(31) There is no justification at all for striking out his defence even if he had failed in any duty. For striking out the defendants defence it ahs to be shown that the provisions of O. 11, R. 21, Civil Procedure Code, have been contravened. There are only three grounds upon which trail Court is justified in striking out the defence of the defendant namely, where there is refusal to answer interrogatories under S. 11, or there is refusal to make discovery of documents under S. 12, and lastly where there is refusal to allow inspection of documents under R. 18.
I do not think that any case has been made out for proceeding either under O. 11, R. 21, or under O. 17. R. 3. The result was, that the defence of Mohan Lal Defendant No. 2 has been materially prejudiced in consequence of the Court not insisting on the predication of the documents required by the defendants and these documents, in view of what has been alleged would have had a considerable bearing on the case.
(32) But a worse illegality has been committed by the trial Court against defendant No. 3.
(33) On 6th of May, 1953, the trial Court passed an order striking out the defence of Mohan Lal defendant No. 2. After this had been done, request was repeated by the counsel for defendant No. 3 that the documents which had been summoned from the military might be ordered to be produced. The Sub-Judge thought that this request was belated and therefore allowed it subject to defendant No. 3 paying Rs. 150/- as conditional costs. Defendant No. 3's counsel made a statement that the terms as to costs were onerous and were not acceptable to his client.
The case, however, was adjourned to 18th May, 1953, for the cross-examination of P.W. 1 by counsel for defendant No. 3 which had not yet begun. On the adjourned date, after the witness had been cross-examined on several matters, a request was made on behalf of defendant No. 3 that as in the meanwhile the record which had been summoned from the military authorities, had been sent to the Court, the witness might be cross-examined on those documents without insisting on his client paying Rs. 150/- as costs, but the Court despite the presence in Court of the witness and of the documents, which had been received from the military, refused the legitimate request to cross-examine the witness on the basis of the documents.
(34) the case had been adjourned from 6th of May, 1953, to 18th of May, 1953, for the cross-examination of P.W. 1 by counsel for defendant No. 3. In the meanwhile the records of the military had been received in Court. Undoubtedly. Amin Chand's counsel had the right to cross-examine the witness was not deferred to 18th May for any reason connected with the documents not having been sent. The order abridging the party's right to cross-examine the plaintiff's principal witness, under the circumstances cannot be supported on any legal or rational ground and by Court's illegal refusal the case of defendant No. 3 has been prejudiced.
(35) Ordinarily the erroneous shutting out of the defence by the trial Court would have justified an order for remand in this case, in order to enable the defendants to lead the evidence which was wrongly excluded, but this necessity is obviated as in our view, on the consideration of such evidence as there is on the record and from other circumstances of the case, the suit merits dismissal.
(36) The evidence and the circumstances on which reliance has been placed on behalf of the respondents to show, that consideration did not pass, may now be examined.
(37-42) (After discussion of some evidence the judgment proceeds:) The defendants being kept under the impression that the plaintiff was claiming to have advanced the amount of the pronote from his own resources, were anxious to show that he was not in a financial position to advance such a large amount, and with that object in view had summoned the account books of the three concerns, in which the plaintiff was interested, by means of an application under O. 11. R. 18, Civil Procedure Code, made on 11th of March, 1953.
The plaintiff submitted a written reply on 18th of March, 1953, objecting to the production of the documents, but he did not in that reply state, as he should have that he was a mere benamidar and no consideration had come from him: but it had come from Sampuran Singh and his female relatives. On the assumption that the subsequent version of the plaintiff is true, the plaintiff is guilty of both expression falsi and suppressio veri.
(43) The variance between the pleadings, and the proof subsequently led, has certainly caused prejudice to the defence. According to the pronote, Rs. 25,000/- was received from Chandan Lal Jaura, plaintiff and in the very first paragraph of the plaint it was stated that defendant No. 2, as one of the proprietors of the firm defendant No. 1, had executed the pronote 'for cash received'. The defendant, naturally, to disprove this allegation had called to show that he was not in possession of money which he could advance on the pronote as alleged by him.
The plaintiff adhered to this stand in his examination-in-chief when he appeared as P.W. 4. It was in cross-examination that he said that he was merely a benami holder of the pronote for Sampuran Singh who had given him the money, that he did not know wherefrom he had brought the money, and that the executant was not known to him. During the course of his cross-examination on 18th of May, 1953 Sampuran Singh disclosed that the money had been provided by his mother, mother-in-law and himself. If this fact had been stated in the plaint the defendant would not have tried to look for evidence as to the financial status of evidence to show that Sampuran Singh and his two female relations had no means to advance such a large amount.
As a result of variance between pleadings and proof, the defendant could not suddenly discover and produce evidence to disprove the story subsequently set out. As a result of the false pleadings, the defendants was deliberately put on a false scent. Courts have always deprecated such tactics and have insisted on the rule embodied in the phrase secundum allegata et probata. Not only this is a rule of logic but also of fairplay. As observed by Lord Westbuy, J. in Eshenchunder Singh v. Shamachurn, 11 Moo Ind App 7 (20, 23 and 24):
'This case is one of considerable importance, and their Lordships desire to take advantage of it, for the purpose of pointing out the absolute necessity that the determinations in a cause should be founded upon a case wither to be found in the pleadings or involved in or consistent with the case thereby made. * * *
It will introduce the greatest amount of uncertainty into judicial proceedings if the final determination of causes is to be founded upon inferences at variance with the case that the plaintiff has pleaded, and, by joining issue in the cause, has undertaken to prove. They desire to have the rule observed, that the state of facts, and the equities and ground of relief originally alleged and pleaded by the plaintiff, shall not be departed from.'
(44) The basis of this principle is, that a party should not be taken by surprise by the change of the case introduced by the opposite party. It was observed in Nadabwipendra v. Madhu Sudan, 16 Ind Cas 741 (742) (Cal.):
'The rule that the allegations and the proof must correspond is intended to serve a double purpose, namely, first to apprise the defendant, distinctly and specifically, of the case he is called upon to answer so that he may properly make his defence and may not be taken by surprise, and secondly, to preserve an accurate record of the cause of action as a protection against a second proceeding founded upon the same allegations.'
(45) It is true, that every variance between pleadings and proof is not necessarily fatal; and in the absence of any element of surprise or prejudice to the opposite party, the rule of secundum allegata et probata will not be enforced with rigour.
(46) The first rule of pleadings is that the plaintiff should state his whole case in his pleadings, in other words, set forth in his pleadings all material facts on which he relies for his claim. The party is not to disclose the evidence by which he intends to prove his claim but the facts disclosed should be material and not misleading. The disclosure has to be made of what are called the allegata probanda, i.e., the facts which ought to be proved. It is the right of the defendant to known to outlines of the case which the plaintiff intends to make against him, and to bind him down to a definite story. It must contain such particulars as
'to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case which he has to meet and to enable him to prepare for trial.'
Vide Bruce v. Odhams Press Ltd., (1936) 52 TLR 224 (228) Per Scott L. J., and Lever Brothers v. Bell. (19310 1 KB 557.
(47) In this case not only the material facts had been concealed but wrong facts had been alleged, and the law is, that no amount of evidence can be looked into upon a plea not put forward, vide Siddik Mahomed Shah v. Mt. Saran, AIR 1930 PC 57(1); Watkins Mayor and Co. v. Jullundur Electric Supply Co. Ltd., AIR 1955 Punj 133; and Bhupindar Singh v. Chanan Singh, AIR 1950 EP 256.
(46) The learned counsel for the appellant has strived to meet this argument by drawing our attention to the provisions of O. 6. R. 13, Civil Procedure Code, which provide:
'Neither party need in any pleading allege any matter of fact which the law presumes in his favour or as to which the burden of proof lies upon the other side unless the same has first been specifically denied (e.g., consideration for a bill of exchange where the plaintiff sues only on the bill and not for the consideration as a substantive ground of claim).'
(49) But in this case, the plaintiff definitely alleged that the pronote had been executed in his favour 'for cash received'. The plaintiff thus sued on the cash consideration coming from him and this was the substantive ground of claim which later on was completely varied.
(50) Another consequence as to variance between the pleadings and proof in this case is, that the presumption under Section 118(a) of the Negotiable Instruments Act stands rebutted. The defendants under this special rule of evidence had to disprove that the consideration had not passed. The moment the plaintiff as P.W. 4 stated that he had no proprietary rights to the aforesaid money, and he did not give the money which was brought from somewhere by Sampuran Singh who was the real lender, the defendants stood absolved from disproving, that the plaintiff had provided the cash consideration as alleged in the pronote and the plaint.
The moment the plaintiff as his own witness retailed an entirely different story regarding the passing of consideration, he, eo instant took upon himself the burden of proving, that consideration, different from that which had been alleged in this pronote, had in reality passed in this case. Thus the plaintiff by his own act relieved the defendants from the burden cast upon them by Section 118(a) of the Negotiable Instruments Act.
(51) There is no gainsaying the fact that a benamidar can sue without impleading the beneficiary, vide Lachmi Chand v. Madanlal Khemka, AIR 1947 All 52; Sarajoo Prasad v. Smt. Rampayari Debui, AIR 1950 Pat 493. But these authorities do nowhere lay down, that the plaintiff may first join issue with the defendant on the question that he is the real creditor, and later on fling a surprise on the defendant and claim himself to be merely a benamidar for another, and then contended that the defendant and claim himself to be merely a benamidar for another, and then contend that the defendant has not been able to rebut the claim of the real beneficiary, the hitherto undisclosed principal.
If the plaintiff wanted to take his stand as a benamidar, then he should not have concealed his status as such, and ought not to have taken his stand on the plea, that he had provided the cash consideration for the pronote.
(52) (After discussion of some further evidence His Lordship concluded). After giving my anxious thought to all the points canvassed before us in this case. I am satisfied that there is no merit in the plaintiff appeal which fails and is dismissed with costs. The cross-objections which relate to costs are allowed.
Shamsher Bahadur, J.
(53) I entirely agree.
(54) Appeal dismissed.