The main legal point established in the judgment is the requirement of producing the promissory note along with the plaint, the conditions for passing a decree in case of a lost negotiable instrument, and the application of Section 43 of the Negotiable Instruments Act in cases of failure of consideration.

1. This is a second appeal by the defendant in O. S. No. 494/1951 on the file of the District Munsiff's Court at Hosdrug, South Kanara. The plaintiff's claim in the suit is for recovery of the principal amount of Rs. 1, 200/- together with interest thereon, alleged to be due to her under a promissory-note executed by the defendant on 18-11-1948. The promissory-note was not filed along with the plaint, on the other hand, it was alleged by the plaintiff that the note was lost. Accordingly the suit was filed as on a lost negotiable instrument. The defendant, while admitting the execution of the promissory-note, resisted the suit mainly on two grounds. The first ground is that no cash consideration passed under the note and that the note was executed towards part of the consideration due to the plaintiff under the sale deed Ext. A4 which was executed by the plaintiff in favour of the defendant on the same date. The second ground is that the allegation that the note was lost is false, that the note is deliberately withheld by the plaintiff because of the consciousness that its production will reveal the fact that it was executed under the circumstances stated by the defendant and that the suit in the present form is unsustainable. It was also contended by the defendant that the sale deed Ext. A4 was set aside by the decree in O.S. No.922/1949 with the result that the consideration for, the plaint promissory-note has failed. The trial court found that the plaint promissory-note is not fully supported by consideration and that the plaint allegation that the note is lost is not true. Accordingly, the suit was dismissed. The plaintiff preferred an appeal to the District Court of South Kanara. The learned District Judge came to the conclusion that since the defendant has no case that the promissory-note is totally lacking in consideration, the plaintiff's claim on the basis of the admitted note is to succeed, and thus the trial court's decree was reversed and the plaintiff was given a decree as prayed for. Hence this second appeal by the defendant.

2. I think that this second- appeal has to succeed on both the grounds urged on behalf of the appellant. The first question is whether the suit as, framed by the plaintiff without the production of the promissory note relied on by her, is sustainable. The normal rule is that the document on which the suit is based should be produced along with the plaint. The production of the basic document is thus insisted on to afford protection to the person liable under it against a similar claim in a subsequent suit brought by a party who might claim to have legally acquired the rights under the document and produce it in support of his claim. The possibility of such risk is greater in the case of negotiable instruments which may change hands frequently by successive endorsements. Against the claim preferred by a holder in due course of such an instrument, the person liable under it may not be entitled to set up a plea that the amount due under the instrument has already been paid. Possession of the instrument by the holder in due course will be prima facie evidence of the liability not having been discharged. The Legislature has taken care to guard against such risks. The relevant provisions are those contained in S.81 of the Negotiable Instruments Act and in R.16 of 0. VII of C. P, C. S.81 of the Negotiable Instruments Act runs as follows:

"Any person liable to pay, and called upon by the holder thereof to pay, the amount due on a promissory note, bill of exchange or cheque is before payment entitled to have it shown, and is on payment entitled to have it delivered up to him, or, if the instrument is lost or cannot be produced, to be indemnified against any further claim thereon against him."

The plaintiff in the present case who has claimed the money due under the plaint promissory-note stated to be lost has not made any offer to indemnify the defendant against any possible further claims b