In case of non-compliance of Rule 11 of the Orissa Money-Lenders Act and Rules, the Court should give the Plaintiff an opportunity to rectify the omission unless prejudice is shown to have been caused to the Defendants.

JUDGMENT :

Misra, J. - Plaintiff is the Appellant. Plaintiff brought the suit for recovery of Rs. 1, 358/10/-on the basis of a promote dated 3-10-1953 (Ext. 9). The principal advanced on the pronote is Rs. 999/-. Out of this, Rs. 160/-was paid in cash, Rs. 506/- was adjusted towards Plaintiff?s dues on a previous pronote dated 26-10-1947 and Rs. 333/-was paid to Gandharba Misra, a creditor of Defendant No. 1. Inspite of repeated demands Defendant No. 1 and his undivided sons did not pay up the loan. Defendant No. 2 is the scribe of the suit pronote.

2. Defendant No. 2 did not contest. Defendants 2 to 4 are the sons of Defendant No. 1. The other Defendants contested their suit alleging that Defendant No. 2 was addicted to opium and due to difference with the father got the suit pronote forged and the suit has been filed at his instance. A further defence was also taken that the plaint did not comply with the provisions of the Orissa Money-Lenders Act and the Rules made thereunder (hereinafter to be referred to as the Act and the Rule).

3. Both the courts below concurrently found that the transaction in suit is true and the hand note is genuine. They accepted the Plaintiff's case on merits. This concurrent finding has not been assailed by the Respondents as being contrary to law. The trial court decreed the suit; but the lower Appellate court dismissed it on the finding that it was not maintainable due to non-compliance of Rule 11.

4. The only contention raised on behalf of the Plaintiff-Appellant is that the learned District Judge should have permitted an amendment of the plaint on the basis of the verbal prayer. Facts necessary for a proper determination of this question must be stated in extenso. In paragraph 9 of the written statement, the contesting Defendants made a bald allegation that the suit was liable to be dismissed as the plaint was not in conformity with the provisions of the Orissa Money-lenders Act and Rules. No reference was made to any specific section or rule. No specific issue was also framed on this question though there is a general issue to the effect "Is the suit maintainable." There is no discussion on this point in the judgment of the trial court who recorded no finding as to whether the plaint was in accordance with the provisions of Rule 11. Ground No. 26 before the lower Appellate court was termed as follows:

For that the Plaintiff having failed to comply with the provisions of Orissa Money Lenders Act as laid down in Rules 11 and 12 of that Act, the learned Court below should have decided under issue No. 1 that the suit was not maintainable and the plaint was liable to be rejected as pointed out in the Written Statement filed by the Defendants and also as argued before the Court at the close of the case.

The learned District Judge in paragraph 29 of his judgment referred to various decisions of this Court and concluded by saying:

Having regard to the above trend of decisions I do not think I have any discretion in the matter, viz., to give an opportunity to the Plaintiff to cure the defects by sending the suit back on remand.

Plaintiff filed the second appeal on 11-3-1961 and did not file any application for amendment of the plaint so as to bring it in conformity with the provisions of Rule 11. The case came up for hearing before me on 23-2-1963. On 25-2-1963 Plaintiff filed an application for amendment of the plaint. There is no doubt that the Plaintiff was thoroughly negligent in not asking for amendment of the plaint even till the date of the hearing of the second appeal. Mr. Dasgupta does not also dispute the gross negligence on the part of the Plaintiff. It is also clear that at the earliest stage of the litigation the Defendants did not clearly and assertively press their objection due to noncompliance of Rule 11. The written statement was drafted by Sri Kshetramohan Swain, who is one of the senior most members of the Bar, and it is somewhat difficult to appreciate as to why he did not clearly mention