The importance of documentary evidence in proving discharge and the requirement for amending the plaint to introduce new grounds for saving limitation.

Walsh, J.

1. Defendant 6 is the appellant in this second appeal. The suit was for recovery of a sum of Rs. 614 alleged to be due on a mortgage, Ex. A, dated 18th February 1910, executed by defendant 1, in favour of plaintiff 1, plaintiff 2s father and defendant 7. Defendants 2 to 5 are the sons of defendant 1. Defendant 6 is a subsequent mortgagee under the mortgage, Ex. 2, dated 4th January 1918. He was the only contesting defendant. He had brought a suit on his mortgage. In that suit in execution he purchased the mortgaged property in Court-auction. His defence in the present suit is that the mortgage Ex. A had been discharged by the mortgage, Ex. 1, dated 28th August 1913, which he had himself paid off when he took his own mortgage, Ex. 2, and that the plaintiff and defendant 1 are colluding in this suit. A question as regards non-joinder of parties was also raised. The suit bond being dated 18th February 1910, and the suit having been brought on 27th August 1925, the claim was prima facie barred by time. Three payments were mentioned in the plaint, not specifically as saving limitation but which, if true, would evidently do so. They were on 10th April 1913, 29th August 1916 and 22nd November 1920. The trial Court found that these alleged payments were untrue and hence limitation was not saved. The suit was therefore dismissed. The lower appellate Court agreed with the trial Court that the alleged payments endorsed in Ex. A were untrue, but it held that limitation was saved by a document, Ex. 1, filed by defendant 6. Agreeing with the trial Court that there was no non-joinder it decreed the plaintiffs suit and against this defendant 6 has appealed. Three grounds in second appeal are taken. The first is that when the learned Subordinate Judge says there is absolutely not even a scintilla of evidence to prove the plea of discharge (that is, discharge of Ex. A), he is overlooking the very important evidence afforded by Exs. 1 and 2 which have been expressly relied on in the trial Courts judgment to prove discharge of Ex. A. The second ground is that the Courts below are incorrect in saying that all the necessary parties to the suit have been added. The third ground is as regards the matter of limitation. With regard to the first point I think it is perfectly clear that the learned Subordinate Judge has overlooked in the most extraordinary way evidence which weighed so strongly with the lower Court. Ho has not even said that he disagrees with its view of that evidence. He simply says that there is not a scintilla of evidence to prove the plea of discharge. Now Ex. 1 narrates that the mortgage is being taken to discharge the mortgage bond, Ex. A, and what is even more important is that in Ex. 2, defendant 1 has added the following as a separate clause:

I declare that there is no encumbrance whatever other than the one mentioned above.

2. The encumbrance mentioned above is Ex. 1. Therefore this is a categorical statement that Ex. A has ceased to exist. That Ex. A should have ceased to exist is strongly borne out by Ex. 1. The matter was put to defendant 1 whom the plaintiffs called as their own witness, P.W. and he could only say:

Exhibit 2 was not read out to me. They wanted me to affix my signature and I did so. I do not know the reason for my signing in two places in Ex. 2.

3. It is extraordinary that in the face of the evidence of Exs. 1 and 2 and of the inability of defendant 1 to give any better explanation of what he himself stated in Ex. 11 than this, the learned Subordinate Judge should say that there is not even a scintilla of evidence to prove the plea of discharge. In my opinion this entirely vitiates his judgment because it is the chief piece of evidence to prove discharge and has not even been considered. I shall take next the question of limitation. Both the trial Court and the lower appellate Court have found that the alleged repayments on Ex. A which would save limitation are untrue. That being so, the suit wo