Mookerjee and Beachcroft, JJ.
1. This appeal arises out of a suit for recovery of Rs. 3,954-4. The Court of first instance gave the plaintiff a decree for Rs. 976-6. Upon appeal, the District Judge has modified that decree and we have before us an appeal by the defendant as also a memorandum of cross-objection by the plaintiff. The appeal and the cross-objection raise two questions upon which the Courts below have taken divergent views. The first question relates to a sum of Rs. 168-8-6; with regard to this, the defendant contends that the claim is barred by limitation. The second question relates to a sum of Rs. 2,000; with regard to this, the Court of first instance dismissed the suit, but the District Judge has granted the plaintiff leave to abandon his claim with liberty to institute a fresh suit under Order XXIII, Rule 1 of the Civil Procedure Code of 1908.
2. As regards the first point, there can be no doubt that the sum really accrued due more than three years prior to the institution of the suit. The plaintiff contends that the claim is not barred by limitation under Article 78 of the second schedule to the Indian Limitation Act. He relies upon the circumstance that the defendant sent him on the 26th February 1911, a hundi for Rs. 300 and, on the 22nd July 1911, a cheque for Rs. 50 which were dishonoured on presentation. His case consequently is that this attracts the application of Article 78 which provides that a suit by the payee against the drawer of a bill of exchange (which has been dishonoured by non-acceptance) must be instituted within three years from the date of the refusal to accept. The suit before us, however, is not one of this description. It is a suit to recover money alleged to be due on accounts taken between the parties; to a suit of this description. Article 78 can have no possible application. On behalf of the plaintiff, this was clearly realised, and an endeavour was made to support the decree of the District Judge on the ground that the delivery of the hundi and the cheque constituted an acknowledgment within the meaning of Section 19 of the Limitation Act. In our opinion, there is no foundation, for this contention. The decision in Raman v. Vairavan (1883) I.L.R. 7 Mad. 392 is clearly distinguishable; there the cheque was accompanied by a letter which contained an acknowledgment sufficient for the purposes of Section 19. We must hold that the view taken by the Subordinate Judge in this respect was correct and his decision should not have been reversed by the District Judge.
3. As regards the second point, no order could properly have been made under Rule I of Order XXIII. The plaintiff sought to recover Rs. 2,000 upon certain allegations which were found untrue by the trial Court. On appeal the District Judge came to the same conclusion, but he held that the plaintiff might be permitted to abandon his claim with liberty reserved to him to institute a fresh suit on the same cause of action. The plaintiff subsequently presented an application to the District Judge, whereupon an order was made under Rule 1 of Order XXIII. The plaintiff, however, notwithstanding this order, has preferred a cross-objection to this Court to the effect that the view taken by the Courts below as to this sum of Rs. 2,000 is not correct. We are of opinion that, in such circumstances, the order under Rule 1 of Order XXIIT should not have been made.
4. As a last resort, the plaintiff seeks for leave to amend his plaint. We are not unmindful that under Rule 17 of Order VI of the Civil Procedure Code very wide powers of amendment are vested in the Court, but we are clearly of opinion that the application of the plaintiff for leave to amend his plaint at this stage should not be entertained. The object of the proposed amendment is to abandon the claim deliberately put forward in the trial Court and persistently reiterated in the Court of Appeal below. If the amendment is granted, the result will follow that the plaintiff will start afresh on allegations wholly inconsistent with those made in the original plaint, and, to support the new allegations, he must bring forward evidence directly contradictory to the evidence already placed by him on the record. Such a feat he should not be encouraged to perform: Kokilasari v. Rudranand (1906) 5 C.L.J.
527, Ghurphekni v. Parmeshwar (1907) 5 C.L.J. 653, Mohesh v. Radhakishen (1907) 6 C.L.J. 581, Kisandas v. Rachappa (1909) I.L.R. 33 Bom. 644, Ramfi Ram v. Salig Ram (1911) 14 C.L.J. 188, Sri Rang v. Rachhya Lal (1911 ) 15 C.L.J. 439.
5. The result is that this appeal is allowed, the decree of the District Judge set aside, and that of the Court of first instance restored, subject to this variation, that interest will run at the rate of six percent, per annum as allowed by the District Judge. The order will carry costs both here and in the Court of Appeal below.