JUDGMENT :- This second appeal, by a defendant, arises out of a suit for the recovery of a sum of Rs. 1,941 on the basis of a pronote dated 23-11-1949. The trial Court (Senior Subordinate Judge, Mahasu) dismissed the suit, holding that the pronote was void under S. 87 of the Negotiable Instruments Act., i.e., because it had been altered, otherwise than in order to carry out the common intention of the original parties.

On an appeal being taken by the plaintiff, the learned District Judge of Mahasu, differing from the view of the trial Court, came to the conclusion that the alteration in the pronote had been made by the defendant himself. He further expressed his view that, in any case, it was open to the plaintiff to fall back upon the original consideration and a decree could be passed in favour of the plaintiff, without an amendment of the plaint.

As regards the amount to be decreed in favour of the plaintiff, the lower appellate Court was of the opinion that the plaintiff could be awarded a decree for only Rs. 1,000 plus interest thereupon at 12 per cent. per annum. As regards the balance of Rs. 471, the plaintiff had offered to be bound by the statement of the defendant on special oath, that offer was accepted by the defendant and he made a statement on special oath, as desired by the plaintiff.

Consequently, the District Judge considered that the plaintiff would have to forego his claim in respect of Rs. 471. In the result, the District Judge granted the plaintiff a decree for Rs. 1,000 plus interest at 12 per cent. per annum, amounting to Rs. 320. It is against this decree that the defendant has come up in second appeal.

2. Mr. Thakur Das for the appellant urged the following points:- (A) The lower appellate Court has erred in holding that the alteration in the pronote had been made by the defendant. (B) In view of the alteration on the pronote - which, according to the appellant, was made without his consent - the suit was liable to be dismissed in toto. (C) It was not open to the plaintiff-respondent to fall back upon the original consideration after the pronote had been held to be void.

3. The learned counsel for the respondent, on the other hand, maintained that the findings of the lower appellate Court on these points were correct and in accordance with law.

4. For reasons to be stated shortly, I am of the opinion that the decree of the lower appellate Court must be upheld.

5. I shall deal with the above points seriatim.

6. (A). The trial Court (Senior Subordinate Judge, Mahasu) was apparently inclined to hold that the defendant himself had made the alteration in the pronote, because when he was asked to write out the figure 1,000 and alter the digits to 1,471, he declined to do so. The learned District Judge has pointed out that the handwriting expert examined by the defendant (Mr. Shanti Sarup Jain) merely expressed his opinion that the figure 1,000 had been altered to 1,471.

He has not said that the alteration was not in the handwriting of the executant, i.e., the defendant. D. W. 1, Nikru, admittedly is illiterate and, therefore, no reliance can be placed on his statement to the effect that the defendant executed a pronote for only Rs. 1,000. One another witness, Anant Ram, alleged to have been present at the time the bond was executed, was given up during the trial, although he had been summoned and was present in Court.

Another circumstance, which goes against the appellant, is that when a notice was sent by the plaintiff to the appellant, claiming the amount of the pronote, i.e., Rs. 1,471, no reply whatsoever was sent by the latter. It was obviously open to him to write back and protest that the amount of the pronote was only Rs. 1,000 and not Rs. 1,471.

7. Mr. Thakur Das urged that on the offer made by the plaintiff (respondent), the defendant (appellant) had, on special oath, deposed that pronote, as executed by him, was for Rs. 1,000 and not for Rs. 1,471. Mr. Thakur Das urged that the legal implication of this stat

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