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Nithayya thevar Vs. Subramanian Ambalakarar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1970)1MLJ400
AppellantNithayya thevar
RespondentSubramanian Ambalakarar
Cases ReferredAchuthan Nair v. Achuthan Nair
Excerpt:
- .....this aspect and should not have rejected the suit on the strength of the tamil date given in the suit promissory note. in that decision the promissory note bore both the english date 16th november, 1934 and the malayalam date thulam 30, 1110 (corresponding to 15th november, 1934) and the suit was laid on 16th november, 1937. wadsworth, j., held that the only question there was which date was wrong and that there was no legal presumption in favour of either. all that the madras decision lays down is that, where there was no doubt about the exact date on which the suit promissory note was executed, it was a question of fact to be determined on evidence and probabilities and nothing more.3. order 7, rule 11, of the civil procedure code provides that, where the suit appears from the.....
Judgment:

S. Ganesan, J.

1. This revision petition is directed against the order of the Court of the District Munsif of Tiruthuraipundi made on 27 th September, 1967 in an unfiled Small Cause Suit, laid on a promissory note bearing the date 27th Adi, Krodhi year (corresponding to the English date nth August, 1964). Applying the provisions of Section 24 of the Limitation Act and accordingly adopting the Gregorian calendar for computing the period of limitation, nth August, 1967 being a working day, the District Munsif rejected the suit filed on 14th August, 1967 as barred by time. 12th and 13th of August, 1967 were admittedly holidays.

2. In paragraph 3 of the plaint it is alleged that the promissory note was executed on 27th Adi, Krodhi year (12th August, 1964) and the learned Counsel relying on the decision of the Madras High Court in Achuthan Nair v. Achuthan Nair : AIR1941Mad582 , contends that the question as to the date of the promissory note is one of fact to be decided by the evidence and probabilities according to Section 96 of the Evidence Act, that Section 24 of the Limitation Act creates no presumption as to the date of document but merely provides that the period of limitation shall be worked out according to the Gregorian calendar and that the District Munsif should have decided the question as to the date of the execution of the promissory note during the trial by permitting the parties to adduce evidence on this aspect and should not have rejected the suit on the strength of the Tamil date given in the suit promissory note. In that decision the promissory note bore both the English date 16th November, 1934 and the Malayalam date Thulam 30, 1110 (corresponding to 15th November, 1934) and the suit was laid on 16th November, 1937. Wadsworth, J., held that the only question there was which date was wrong and that there was no legal presumption in favour of either. All that the Madras decision lays down is that, where there was no doubt about the exact date on which the suit promissory note was executed, it was a question of fact to be determined on evidence and probabilities and nothing more.

3. Order 7, Rule 11, of the Civil Procedure Code provides that, where the suit appears from the statement in the plaint to be barred by any law, the plaint may be rejected and the contention of the learned Counsel is that the learned District Munsif ought to have held on the pleadings that there was a doubt about the actual date on which the promissory note was executed and should have relegated the question of limitation to be decided during the trial and that he was wrong in looking into the promissory note which admittedly bears only the Tamil date 27th Adi, Krodhi at that stage. The question whether the recitals made in the promissory note, which was admittedly filed by the petitioner along with the plaint, should be treated as part of the statement in the plaint, is not free from difficulty ; and it -does not appear that there is any direct decision on this point. One thing, however, is clear and it is that a document which is referred to in, forms the basis of and is 'filed along with the plaint should be treated as part of the plaint. It must be borne in mind that Order 7, Rule 14 (1) stipulates that the plaintiff shall produce in Court the document upon which he sues, when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint. In my view, it would be artificial to divorce the said document from the plaint and to contend that the said document which is admittedly filed along with and forms the basis of the plaint should not be looked into by the Court and should not be regarded as part of the plaint while checking the plaint before filing the suit. Where the allegations in the plaint are at variance with the material recitals in the document which form the basis of the suit, it would be open to the Court to return the plaint for rectification; and in a case of this kind it appears to me clear that the Court would be perfectly justified in treating the recitals in such documents as part of the statement in the plaint for purposes of rejection under Order 7, Rule 11 of the Civil Procedure Code.

4. In this particular instance, the suit filed on 14th August, 1967 on the basis of the suit promissory note which admittedly bears only the Tamil date 27th Adi, Krodhi (corresponding to nth August, 1964) is clearly barred by time; and the only question for consideration is whether the lower Court was right in basing its rejection on the suit promissory note when the plaint has given two different dates and when the suit is not barred if the English date given in the plaint is acted upon. It is plain that a fraud is sought to be played by the plaintiff on the Court by deliberately giving the wrong English date in the plaint; and it appears to me clear that he should not be permitted to turn round and blame the Court for not adhering to Order 7, Rule 11, Civil Procedure Code, strictly to the letter. In cases of this kind it is perfectly open to the Court to rely upon the date given in the document which is admittedly produced along with the plaint and referred to in the schedule, especially when the said date is also referred to in the body of the plaint along with the wrong date. There is absolutely no material to warrant interference in version. The rejection of the plaint is proper.

5. In the result, the revision petition is dismissed without costs.


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