V.B. Raju, J.
1. This is a second appeal by the original plaintiff whose suit to recover Rs. 5100/from the detendant said to have been paid on 21-6-49 was dismissed by the District Judge Broach who held that the amount has been paid on 14-6-49 and that therefore the plaintiffs suit filed on 20 was barred by limitation.
2. In second appeal the Learned Counsel for the appellant concedes that there is a finding of fact that the amount Rs. 5100/was paid on 14-6-49 and that if this finding is correct the suit would be obviously barred by limitation as it was filed more than three years after that date. But he contends that this finding of fact is vitiated by overlooking the question of estoppel. He urged that even if the money was paid on 14-6-49 there was an agreement or understanding between the parties that the money was to be treated as having been paid on 21-6-49. He stated that estoppel had not been pleaded either in the plaint or even in the first appeal. He however relies on Abdullah Shah v. Mohammad Yaqub A.I.R 1938 Lahore 558 and on Co-operative Town Bank v. Shanmugam A.I.R. 1930 Rangoon 265 and contends that the question of estoppel can be raised even in second appeal. In the Lahore case the facts on which the plea of estoppel was based were on the record and the estoppel was based on the footing of the finding of the learned District Judge himself. Therefore it was rightly held that in such cases the question of estoppel could be decided in second appeals although estoppel had not been pleaded in the pleadings. In the Rangoon case it was held that defence of estoppel can always be taken if it is warranted by the facts proved or admitted even if those facts have not been specifically pleaded. In both these cases therefore although the facts giving rise to estoppel were not pleaded they were proved by evidence or by admission. In the instant case however that is not the case that there was an agreement or understanding between the parties on 14-6-49 is neither pleaded nor proved by the evidence nor is there any finding of either of the Courts below relating to any agreement or understanding between the parties on 14 In these circumstances it is not open for the appellant in second appeal to raise the question of estoppel.
3. The Learned Counsel for the appellant also relied on a promissory note to prove that there was an agreement or understanding between the parties. But this promissory note has not been proved and is not admitted in evidence.
4. The Learned Counsel cannot therefore refer to a document which is not a part of the record. Even if the document is looked at it does not prove any agreement or understanding between the parties on 14-6-49. The Learned Counsel for the appellant relies on In re Tarun Kumar Ghose A.I.R. 1936 Calcutta 509 and contends that when the defendant agreed that the money was to be treated as having been paid on 21-6-49 he should not be allowed to say that he did not act in such a manner. In the Calcutta cash it was held that when a man may have acted rightly or may have acted wrongfully he cannot be heard to say for his own benefit that he acted wrongfully. Reliance was placed on Doolan v. Midland Railway Co. 2 A.C 792(6) at p 807 where Lord Blackburn said It does not lie in the mouth of a Railway Company to set up its (own) illegality. A reference was also made to the following observations of Jessel M.R. in 13 Ch.D. 696(7) p. 727.
Nothing can be better settled in the law I suppose of all civilised countries than this that where a man does an act which may be rightfully performed he cannot say that that act was intentionally and in fact done wrongly wherever it can be done rightfully he is not allowed to say against the person entitled to the property or the right that he had done it wrongfully.
5. Relying on this case it was contended that in view of the defendants conduct in agreeing that the money was to be treated as having been paid on 21-6-49 he should not now be allowed to say that he had received that money on 14-6-49 and not on 21-6-49. This argument is the argument relating to estoppel in a different form. The promissory note has not been proved or admitted in evidence. The signing of a promissory note is not a wrongful act. The Calcutta case has therefore no application to the facts of the present case.
6. It is also contended that even if the promissory note was not admissible in evidence as it was unstamped it should have been admitted in evidence as an acknowledgment and he relies on Meenammal v. S.N.O Reddiar : AIR1960Mad237 But it is conceded by the Learned Counsel for the appellant that no attempt had been made at the hearing of the suit to put the promissory note in evidence and that no ruling was given by the lower Court disallowing the promissory note in evidence. It is however contended that the promissory note should be admitted in second appeal at this stage as an acknowledgment. But I see no reason to allow any fresh evidence in second appeal particularly when the document has not been proved. I therefore reject the request to admit fresh evidence in second appeal.
7. I therefore reject the contentions of the Learned Counsel for the appellant dismiss this second appeal. The Learned Counsel for the respondent does not press for costs of this appeal. I therefore make no order as to costs.