MISHRA, J.

1. Plaintiff/appellant has preferred this appeal under Clause 15 of the Letters Patent of this Court, against judgment by a learned single Judge under which he has held that a promissory note said to have been executed by defendants 1 and 2 who are father and son in his favour on 25.11.1976 for a sum of Rs. 70,000/- is not valid in law. According to the plaintiff/appellant, the date of the promissory note and the name of the promisee were not filled up in the promissory note and the defendants had authorised the plaintiff to fill up those particulars himself. Accordingly, the plaintiff filed the suit without filling those particulars but sought permission of the Court and after such permission filled up those particulars and re-filed the original promissory note. According to the plaintiff/appellant when the defendants failed to pay the interest due under the promissory note for two months, he pressed for the same and the third defendant viz. the wife of the first defendant executed a letter of guarantee on 1.2.1977 for repayment of the loan. Learned single Judge has noted in his order.

“All the three defendants executed the letter of guarantee in favour of the plaintiff acknowledging the liability under the promissory note. Thus, the defendants 1 and 2 as principal borrowers and the 3rd defendant as guarantor are jointly and severally liable for the suit claim.”

In the common written statement, defendants 1 and 2 denied the borrowing but said that they had signed a blank promissory note and given it to the plaintiff. They pleaded that the plaintiff had several concerns in different names as partners and second defendant had dealing with the plaintiffs various concerns and he (plaintiff) habitually took blank promissory notes from the borrowers and in particular took the signatures of defendants 1 and 2 in blank promissory notes mentioning the figure of Rs. 70,000/- and the year 1971 and another blank promissory note for a similar sum in 1973. According to them, neither the date nor the name of the promisee was mentioned in the said promissory note, and they had duly settled the amounts due under the dealing with the plaintiffs concern but the plaintiff did not return the promissory notes. According to them, the letter of guarantee was signed only on a blank paper. The defendants came forward with an additional written statement that the promissory note was vitiated by material alteration and that the suit was liable to be dismissed, since the unfilled paper that had been filed with the plaint was not a promissory note on the date of the filing of the suit.

2. The trial court originally framed four issues and on the filing of the additional written statement, two additional issues, viz., (1) Is the suit liable to be dismissed for reasons set out in the additional written statement? and (2) Whether the suit promissory note is vitiated by material alteration, Learned judges who framed the issues and the additional issues respectively were not to hear the suit. It came up for hearing before T.N. Singaravelu, J., who has entered into the case saying:

“This is an unusual suit filed by the plaintiff on a blank promissory note without the date of the promissory note and the name of the promisee. However, even when the name of the promisee is not found in the negotiable instrument, the plaintiff has chosen to file the suit on the promissory note in his own name. In other words, it is very important to note that the suit is not based on the original cause of action but only on the promissory note purporting to bear the date 23.11.1976. It is strenuously contended on behalf of the defendants that the suit on a blank promissory note without the particulars of date and the promisee, is not a negotiable instrument in the eye of law, and therefore, the suit itself is not maintainable. Therefore these points covered by the additional issues were taken as preliminary issues at the time of trial.”

He has on the two additional i