The court emphasized the power of the court to order transposition under Order 1, Rule 10, Civil Procedure Code and the inability of the later promissory note to wipe off the prior promissory note due to insufficient stamping.

Abdur Rahman, J.

1. This is a revision against an order of the Subordinate Judge of Vizagapatam dismissing a suit of small cause on the grounds that the promissory note Which formed the basis of the suit was not sufficiently stamped and the application made by the fourth defendant to be transposed as a plaintiff and seeking permission to continue the suit on the original cause of action was not maintainable. The suit as framed was certainly based on the promissory note; but-either as a matter of history as to how the promissory note came into existence or with the object of disclosing as to how the cause of action had accrued, it was stated in paras. 3 and 4 of the plaint that there were prior dealings between the parties and the last promissory note on which the suit was based, was only executed in renewal of a prior promissory note of 1930.

2. The only questions that have been debated before me, are whether the application made by the fourth defendant for transposition should not have been allowed and whether the fourth defendant should not have been permitted to continue the suit on the basis of the original cause of action as the promissory note which formed the basis of the present suit was found to be insufficiently stamped. After hearing learned Counsel for the parties, I have no hesitation in holding that the fourth defendant should have been ordered to be transposed as a plaintiff and having regard to the allegations made in paras. 3 and 4 of the plaint, the suit should have been treated as one on the original cause of action. If the later promissory note of 1930 was faund to have been insufficiently stamped, as it was in the present case and hence inadmissible in evidence, the prior promissory note of 1927 cannot be safe to have been merged in or wiped off by the later document. It is true that the present suit was brought by the plaintiff on account of the endorsement made on the later promissory note of 1930 and an application was made on behalf of the fourth defendant only when it was disepvered that the later promissory note was inadmissible in evidence, but the Court could certainly make an order, after it was moved to do so under the wholesome provisions of Order 1, Rule 10, Civil Procedure C6de, when it was found to be necessary for the final adjudication of the questions involved in the suit and would have in any case avoided, multk plicity of proceedings. Even if the rules of procedure had not permitted such a course, the Court would have been fully justified--nay perhaps obliged, to invent a procedure as long as it was not prohibited either expressly or impliedly from doing so and to grant relief. But this question does not fortunately arise in this case as the powers conferred on Courts under Order 1, Rule 10, Civil Procedure Code, are wide and the section has to be liberally construed.

3. Learned Counsel for the respondent relied on two decisions one of which is reported in Krishnaji Shivajt Pawar v. Hanmaraddi bin Mallaraddi Maidur I.L.R.(1934)Bom. 536. This case has no application because the father who made a petition to be impleaded in that suit was not on the record and it was considered that a substitution of the name of the right plaintiff could only be ordered if the suit was not at the date of such substitution barred by limitation. This is not the case here. The second decision which is reported in Lakshmi Narasimhachariar v. Mangammal (1939) 49 L.W. 387, has also no application as the petition for amendment was made in that case for the first time in appeal while here the petition was made in the trial Court before the suit was disposed of.

4. I would in the circumstances accept the revision and order the fourth defendant to be transposed as a plaintiff and permit him to amend the plaint so as to base the cause of action on the original promissory note of 1927 with such other facts as may entitle him to bring his suit within time. There is no reason however why the fourth defendant should n