Judgment

SINHA, C.J.I. : The substantial question for determination in this appeal is whether or not the two hundis sued upon were admissible in evidence. The learned Trial Judge held that they were, and in that view of the matter decreed the suit in full with costs and future interest, by his judgment and decree dated September 26, 1952. On appeal, the High Court of Rajasthan at Jodhpur, by its judgment and decree dated October 8, 1956* allowed the appeal and dismissed the plaintiffs suit. Each party was directed to bear its own costs throughout. The High Court granted the necessary certificate under Art. 133(1)(a) of the Constitution. That is how the appeal is before us.

* (See AIR 1957 Raj 47-Ed.)

2. It is only necessary to state the following facts in order to appreciate the question of law that has to be determined in this appeal. The defendant-responmdent is said to have owed money to the plaintiffs, the appellants in this case, during the course of their business as commission agents for the defendant, at Bombay. Towards the payment of those dues, the defendant drew two mudatti hundis in favouor of the plaintiffs, for the sum of 35 thousand rupees, one for 20 thousand rupees payable 61 days after date, and the other for 15 thousand rupees payable 121 days after date. The plaintiffs endorsed the two hunddis to G. Raghunathmal Bank and asked the Bank to credit their account with the amount on realization. On the date of their maturity, the Bank presented those hundis to the defendant, who dishonoured them. Thereupon the Bank returned the hundis to the plaintiffs. As the defendant did not pay the amount due under those documents on repeated demands by the plaintiffs, they instituted a suit for realization of Rs. 39,615/-, principal with interest. On those allegations, the suit was instituted in the Court of District Judge, Jodhpur, on January 4, 1949.

3. It is not necessary to set out the defendant s written statement in detail. It is enough to state that the defendant admitted the execution of the hundis, but alleged that they had been drawn for purchasing gold in future and since the plaintiffs did not send the gold, the hundis were not honoured or accepted. It was denied that the defendant owed any amount to the plaintiffs or that the hundis were drawn in payment of any such debt. It was thus contended that the hundis were without consideration. The most important plea raised by the defendant in bar of the suit was that the hundis were inadmissible in evidence because they had not been stamped according to the Stamp Law.

4. On these pleadings, a number of issues were joined between the parties but the only relevant issue was issue No. 2 in these terms:-

"Whether the two hundis, the basis of the suit, being unstamped, were inadmissible in evidence? (OD*)

* which perhaps are meant to indicate that the onus was on the defendant in respect of this issue.

It appears that the defendant led evidence first, in view of the fact that the onus lay on him. He was examined as DW5, and in his examination-in-chief he stated,

"I did not receive any gold towards these hundis. I asked them to return the hundis, but they did not return them. I had drawn the two hundis marked Ex. P. 1 and Ex. P. 2. They are written in Roopchand s hand. I did not receive any notice to honour these hundis."

His other witnesses, DWs. 1, 2 and 4 were examined and cross-examined with reference to the terms of the hundis and as to who the author of the hundis was. All along during the course of the recording of the evidence on behalf of the parties, these handis have been referred to as Ex. P. 1 and Ex. P. 2. The conclusion of the learned Trial Judge on issue N. 2 was in these terms:-

"Therefore, in this case the plaintiff having paid the penalty, the two documents in suit having been exhibited and numbered under the signatures of the presiding officer of court and the same having thus been introduced in evidence and also referred to and read in evidence by the defendant