Kerala High Court
Patel Babu Lal Pranlal Brothers And Ors. vs Pameric Export International, Cochin ... on 1 June, 1999
Equivalent citations: AIR1999KER355, AIR 1999 KERALA 355, (1999) ILR(KER) 2 KER 774, 1999 HRR 79, (1999) 123 PUN LR 436, (1999) 1 RENTLR 621, (2000) 1 RECCIVR 386, (2000) 1 LANDLR 98, (1999) 2 KER LJ 14, (1999) 4 RECCIVR 28, (1999) 4 CIVLJ 475, (1999) 4 CURCC 334, (1999) 1 CURLJ(CCR) 675, (1999) 2 KER LT 500, (1999) 3 CIVILCOURTC 417
JUDGMENT Rajan, J.
1. The appellants who were the plaintiffs filed the suit for recovery of the money alleged to be due from the respondents-defendants. There were various payments made by the respondents to the appellants. The last date of such payment was 12-8-1982. Thereafter the respondents defaulted payment. The suit was filed on 24-8-1985. According to the appellants the suit was not barred by limitation on account of Ext. A9 acknowledgment letter dated 27-9-82. By Ext. A9 acknowledgment, the respondents confirmed that the entire money due to the appellants would be paid shortly. The lower court dismissed the suit on the ground that the suit claim was apparently barred by limitation and that there was no specific pleading claiming grounds of exemptions from the law of limitation as enjoined under Rule 6, Order VII of the Code of Civil Procedure. The above rule reads as follows :
"Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed;
Provided that the Court may permit the plaintiff to claim exemption from the law of limitation on any ground not set out in the plaint, if such ground is not inconsistent with the grounds set out in the plaint."
According to the lower court the plaintiffs have not specifically stated that the suit was not barred by limitation in view of the acknowledgment of liability as per Ext. A9. Since there was no pleading on this aspect, Ext. A9 could not be looked into by the Court.
2. Para 6 of the plaint stated as follows :
"6. The cause of action for the suit arose on the date on which logs were purchased and subsequently on 13-8-82 the date on which the amount became due and on 27-9-82, the date on which the defendants acknowledged payment at Thrikkakara South village, within the jurisdiction of this Court."
3. According to the lower Court the provision contained in Rule 6, Order VIII, C. P. C. is mandatory and therefore the suit was liable to be dismissed on the ground of limitation. The reasoning as mentioned above is that there must be specific pleading with regard to the ground of exemption from the law of limitation. The lower Court has relied on a decision of the Allahabad High Court reported in S.S. Tewari v. G. Ganesh Prasad Misra, AIR 1978 All 117 for the above purpose. The relevant portion, as quoted in the judgment of the lower Court, reads as follows :
"If the plaintiffs' right of action is apparently barred under the statute of limitation, Order VII, Rule 6 of the Code makes it his duty to state specifically in the plaint the grounds of exemption allowed by the limitation Act upon which he relies to exclude its operation and if the plaintiff has got to allege in the plaint the facts which entitles him to exclude its operation these facts obviously must be in existence at or before the time when the plaint is filed. The provisions of Rule 6 of Order VII, C. P. C. are mandatory in nature and whenever a plaintiff wants to seek exemption from the operation of law of limitation, he must expressly state in the plaint the grounds on which exemption is sought for."
4. The learned counsel for the appellants submitted that the view of the lower Court that there must be specific pleading with regard to exemption from the law of limitation under Rule 6, Order VII is not correct. It was further contended that under the proviso to the above Rule, the Court may permit the plaintiffs to claim exemption from the law of limitation on any one of the grounds set out in the plaint, if such ground is not inconsistent with the grounds set out in the plaint. According to the learned counsel, in fact the appellants filed such a petition for amendment of the plaint taking up such additional grounds, but it was rejected on the ground that it was filed after the judgment.
5. The learned counsel also invited our attention to another ruling of the Allahabad High Court reported in P.C. Bhandari v. New Victoria Mills, AIR 1979 All 1, wherein it was held that Order VII, Rule 6, C. P. C. is not an impediment in taking into consideration the two letters of acknowledgment for the purpose of claiming exemption from the law of limitation.
6. Thus the question which is to be considered in this case is whether there must be specific pleading with regard to the ground of exemption from the law of limitation as mentioned in the above rule.
7. As early as 1958, a Division Bench had occasion to consider the above matter in the ruling reported in N. Subramanian v. S. Kalyanarama, AIR 1958 Ker 243. That was also with regard to an acknowledgment being relied on to save the limitation. This Court held that when the relevant facts have been made mention in the plaint, it was not necessary to formally rely on the acknowledgment as a ground of exemption for saving limitation in the plaint. In the above decision, a ruling of the Calcutta High Court reported in (1908) 12 Cal WN 617 (Raghunath v. Syed Samad) was relied on, In that ruling it was held that the plaint should not be rejected merely because the exemption was not claimed specifically. All that the rule requires is that the plaint shall show the ground of exemption.
8. Considering these aspects of the case, we are of opinion that it is sufficient that the ground of exemption is apparent on the face of the plaint and that it is not necessary that the plaint should specifically and in so many words claim the grounds of exemption.
9. In this case the averments clearly show that the plaintiffs want to rely on the acknowledgment for the purpose of saving the claim from the vice of limitation. Moreover Ext. A9 was produced along with the plaint so that the defendants were not taken by surprise by the plea of exemption.
10. The lower Court while discussing the above aspect had held that Ext. A9 did not contain any acknowledgment of payment. Since we are of opinion that the case must go back to the lower Court for fresh disposal, we vacate the above finding of the lower Court with regard to the legality of the acknowledgment.
11. Under these circumstances we allow the appeal and set aside the decree and judgment. The suit is remanded to the lower Court for fresh disposal in accordance with law.