Alteration in date of pronote material.

Plaintiff is the appellant in this second appeal against the reversing judgment in A.S.No.205 of 1981 on the file of the Principal District Judge, Pondicherry, which dismissed his suit O.S.No.127 of 1979 on the file of the Principal Subordinate Judge, Pondicherry for the recovery of a sum of Rs.6,055 due under Ex.A-1 promissory note executed by both the defendants in favour of the plaintiff.

2. The only question that is argued before me in this second appeal relates to the material alteration of Ex.A-1 promissory note. The 2nd defendant remained ex parte.. According to the 1st defendant, the suit promissory note bears, only the date 12. 1975, but it has been altered by the plaintiff to 12. 1976. The lower appellate court has found that there is such an alteration and it has also held that it is a material alteration within the meaning of Sec.87 of the Negotiable Instruments Act. Therefore, the lower appellate court has dismissed the suit since as per Sec.87 of the Negotiable Instruments Act, Ex.A-1 is a void document in view of the said material alteration.

3. Though the learned counsel for the appellant argues that there was no such alteration at all, after seeing Ex.A-1, I have only to concur with the lower appellate court that there was such alteration of date.

4. Further, the 1st defendant also marked Ex.B-1, which is draft copy of Ex.A-1 promissory note and that bears the date 12. 1975 only and the lower appellate court also observes that the marking of Ex.B-1 was not objected to by the plaintiff and that on the contrary, by his suggestion to the 1st defendant, the plaintiff impliedly admitted the existence of the draft. No doubt, the learned counsel for the appellant argues that the existence of this draft Ex.B-1 was not adverted to in the written statement. But, on that ground, the genuineness of Ex.B-1 cannot be challenged when the plaintiff has not only chosen to object to the marking of the said document, but also put a suggestion to the 1st defendant in the witness box impliedly admitting the existence of the draft.

5.. But, the question that has to be considered is whether the said alteration is a “material alteration” within the meaning of that term under Sec.87 of the Negotiable Instruments Act. In this connection, there is of course a defence plea in the written statement of the 1st defendant, alleging the abovesaid alteration. The relevant plea in the 1st defendant’s written statement is as follows:

“The 2nd defendant and the plaintiff are colluding together. The plaintiff is the brother-in-law of the 2nd defendant. There has been recent enmity and misunderstanding between 1st and 2nd defendant. The plaintiff and the 2nd defendant construed together and altered the years and brought into existence a false endorsement.”

The lower appellate court also says that the point for determination in the first appeal is whether the promissory note is void for material alteration. Even in the trial court, though there is no specific express issue regarding the abovesaid material alteration, on 29. 1981, while the suit was pending there was an interim order by the trial court as follows:

“Heard both sides on the question of burden proof. Perused pleadings and issues. The first defendant has alleged in his written statement that he has not executed any pro-note and the suit pronote is not enforceable as there is a material alteration of the year. On perusing the issues and on considering the pleadings, I find that the burden of proof first lies with the plaintiff and he has to discharge the burden first. Accordingly, I direct the plaintiff to begin his side. For trial call on 110. 1981”.

Thus, the trial court, on the footing that there was plea of material alteration by the 1st defendant, found that the burden of proof initially was on the plaintiff and had directed the plaintiff to discharge the said burden first by first letting in evidence. But, on 110. 1981, when the suit was taken up for trial, the plain