JUDGMENT
Lawrence Jenkins, K.C.I.E., C.J.
1. This is an application to us under Section 25 of the Provincial Small Cause Courts Act.
2. It is objected by the plaintiff that his suit was wrongly dismissed.
3. The suit was based on a Khata, and it seems to have been contended before the Court that the Khata was a promissory note.
4. We do not think that it is a promissory note within the meaning of the Negotiable Instruments Act, but subject to the conditions that we will next mention, it does appear to us that it may be a promise within Section 25, Clause (iii) of the Contract Act.
5. The conditions necessary to make it a promise within that section is that it should be made in writing; be signed by the persons to be charged therewith; and be a promise to pay wholly or in part a debt, of which the creditor might have enforced payment but for the law of the limitation of suits.
6. It is said that the signatory of this Khata is not the original debtor, but is his son and heir.
7. For the defendant it is contended that there is no proof that the defendant is the heir of the original debtor, for it is not even shown that the original debtor is dead.
8. These are matters into which we are unable to go at this stage.
9. All we can say is this that if it be proved that at the time when he signed the Khata the defendant was one against whom the debt might have been enforced, but for the law of limitstion, then the case falls within Section 25, Clause (iii) of the Contract Act.
10. The case has not been considered from this point of view. In our opinion it should be.
11. There is one further point that calls for remark, The Khata has been admitted in evidence though it only bears a one anna stamp. This would be a sufficient stamp if the document is a promissory note within the meaning of the Stamp Act, but whether in the view we take the document has been sufficiently stamped, will be a point for the lower Court to determine.
12. In this connection we refer to Mathurahhai v. Dalpat (1901) 3 Bom. L.R. 839.
13. We set aside the decree of dismissal and make the rule absolute, and send back the case for re-determination in the light of these remarks, on the record as it at present stands.
14. In dealing with the case, the learned Judge must proceed upon the plaint as it stands and must not allow any amendment of that plaint or any case to be made that does not strictly fall within the limits of the plaint as it has already been formulated.
15. Our reason for saying this is that we wish to adhere to the rule of practice that a plaintiff should not be allowed to amend his plaint by setting up fresh claims in respect of causes of action which, since the issue of the suit, have becomer barred by the statute of limitation.
16. Mr. Shah desires to adduce evidence. That may mean that his case has not been hitherto presented to the Court in a manner entitling his client to success.
17. We give him permission to do this. But we reserve the costs up to this time to be dealt with by the lower Court, with the expression of our opinion that if the lower Court considers that the fresh evidence was necessary for the plaintiff’s case, then costs up to this time should be borne by the plaintiff.
18. In sending the case back, we call attention to Mr. Patwar-dhan’s statement on behalf of his client that since the suit he had been compelled to go to Aden on service. If this be so, we think facilities should be given to the defendant to meet any case that the plaintiff may make against him.
