Kerala High Court
A. Muhammed Sali vs The Divisional Forest Officer on 9 January, 2001
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
TUESDAY, THE 26TH DAY OF FEBRUARY 2013/7TH PHALGUNA 1934
SA.No. 442 of 1999 (C)
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AGAINST THE JUDGMENT IN AS.93/1995 of DISTRICT COURT,KOLLAM
AGAINST THE JUDGMENT IN OS.127/1989 of SUB COURT,KOTTARAKKARA
APPELLANT(S):
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A. MUHAMMED SALI,
CHARUVILA PUTHEN VEEDU,
KULATHPUZHA * (died)
ADDL. R2: SMT. MAJEDA VEEVI,
CHARUVILA PUTHEN VEEDU,
KULATHPUZHA 691 310
ADDL. R3: M. NASARUDDIN - DO-
ADDL. R4: M. NISARUDDIN OF -DO-
ADDL. R5: M. NAZEERUDDIN -DO-
ADDL. R6: M.NAZEEMUDDIN - DO-
ADDL. R7: M. NIZAMUDDIN -DO-
ADDL. R2 TO R7 IMPLEADED AS PER ORDER IN C.M.P. 43 OF
2001 DATED 9-1-2001
BY ADV. SRI.ALEX VARGHESE
-2-
RESPONDENT(S):
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1. THE DIVISIONAL FOREST OFFICER, PUNALUR
2. THE CONSERVATOR OF FORESTS, KOLLAM CIRCLE.
KOLLAM
3. THE RANGE OFFICER, ANCHAL
4. STATE OF KERALA REPRESENTED BY THE SECRETARY TO
GOVERNMENT, FOREST DEPARTMENT, SECRETARIAT
BY SPECIAL GOVT. PLEADER (FOREST) SRI. M.P.MADHAVAN KUTTY
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26-02-
2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
N.K.BALAKRISHNAN, J.
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S.A. No. 442 of 1999
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Dated : 26th day of February 2013
JUDGMENT
Plaintiff in a suit for money is the appellant. He took part in an auction conducted on 16-6-1982 and bid four lots of firewood for Rs. 32,511.55. He had made an earnest money deposit of Rs. 5,000/- for participating in the auction. Since the notification for sale was published only on 15-6-1992 Government had to be addressed for condonation of the violation of rule. The plaintiffs subsequently resiled from the contract and requested for return of the money deposited by him as per letter dated 22-10-1992. The third defendant issued a notice on 4-2- 1983 demanding the plaintiff to remit the balance bid amount. Since he failed to pay the amount re-sale of the firewood was ordered. In the re-sale the third defendant was stated to have sustained loss. After adjusting the amount of Rs. 5,000/- which was deposited by the plaintiff S.A. No. 442 of 1999 -:2:- before participating in the auction, the demand notice was sent for return of the balance amount. The plaintiff then filed the suit to restrain the defendants from proceeding with the same.
2. The defendants resisted the suit contending that the suit is bad for want of notice under Sec 80 of the C.P.C. . The prayer for recovery of the amount is barred by limitation. It is contended that auction sale on 16-6-1982 was conducted subject to the terms and conditions of Ext. B2, the Gazette notification dated 9-3-1982 and as such the plaintiff is bound to remit the balance amount within 52 days from the date of confirmation of sale. The auction sale had to be confirmed by the Government since the interval between the Gazette notification and the date of sale was one day. The second defendant confirmed the sale as per order dated 22-1-1983. The contention that the firewood became non-merchantable and as such the plaintiff had to resile from the contract is denied by the defendant. The plaintiff participated in the auction held on S.A. No. 442 of 1999 -:3:- 16-6-1992 long after the firewood was stacked.
3. P.W.1 and P.W.2 and DW1 were examined and Exts. A1 to A13 and B1 to B4 were marked. The trial court found that the plaintiff participated in the auction held on 16-6-1982 long after the fire wood was stacked and so his plea that the firewood became non-merchantable and totally useless is unacceptable. It is further contended that since the plaintiff was bound to remit the balance amount and since he failed to pay the same, the defendants were entitled to forfeit the sum of Rs. 5,000/-, the earnest money deposit. The plaintiff is also liable for for the loss of the amount occasioned as the re-sale had to be conducted for lesser amount. The appellate Court re-appreciated the evidence and considering the entire aspects dismissed the appeal.
4. The learned counsel appearing for the appellants would submit that as there was no confirmation of the sale by the authorities within a reasonable time and as the firewood which was of softwood variety stacked in open S.A. No. 442 of 1999 -:4:- ground, exposed to heat and rain, became deteriorated and useless and as such the appellant had sent communication dated 22-10-1982 to the first respondent revoking the bid and for return of the earnest money. Such communications were also sent to respondents 2 and 3 on 16-12-1982 and 22-01-1983. But the bid was not confirmed till 4-2-1983. The communication to that effect was sent to the appellant only on 22-9-1983 as per which the appellant was required to remit the balance amount. It is further contended that aggrieved by that notice he approached this Court by filing O.P. 2331/1983 for refund of the earnest money deposit and to quash the demand notice dated 4-2-1983. That O.P. was disposed of on 29-7-1987 directing the appellant to approach the appropriate forum. It is contended that on 7-7-1989 the appellant received another notice dated 24-5-1989 stating that the first respondent suffered a loss of Rs. 19364.75 as a result of the re-auction of firewood conducted on 10-6-1983. It was stated that the sum of Rs. 5,000/- deposited by the appellant on 16-6-1982 S.A. No. 442 of 1999 -:5:- was forfeited.
5. The appellant contends that since he had communicated the factum of revocation on 22-10-1982 the respondents should have re-auctioned the firewood immediately and had it been done the loss could have been avoided or at least minimised but the re-auction was conducted only on 10-6-1983. Since there was such an unreasonable delay, the reduction in the value caused in the re-sale, cannot be a ground available to the respondents to fix the damages on the appellant. It is further contented that the courts below failed to note that there was unreasonable delay in confirming the sale and as such the claim made by the respondent is unjustifiable.
6. The learned Special G.P. Sri. Madhavankutty would submit that on 15-6-1982 the other lots of firewood were also sold and that other bidders had taken delivery of the firewood after remitting the balance amount and that there was no complaint whatsoever as to the quality of the firewood or that the firewood became decayed because of S.A. No. 442 of 1999 -:6:- the alleged delay in confirmation of the sale. In fact the order of confirmation by the Government did not prevent the appellant from taking delivery of the same since the delivery was effected in favour of bidders of other bidders. According to the learned Special G.P. it was a clear case where the appellant failed to remit the amount and wanted to resile from the contract without any reason. The unilateral revocation of the contract is not permissible and as such the appellant cannot contend that because he has resiled from the contract he is not liable for the loss occasioned to the respondents for the shortfall in the resale conducted on 10-6-1983. The further contention that because the firewood was stacked in an open ground and as it was exposed to sun and rain it became decayed and unmerchantable is also opposed by the learned Special G.P. since the firewood was stacked even long prior to the date of auction and the firewood lots similarly stacked there were taken delivery of by the other bidders without objection and there was no complaint that the firewood S.A. No. 442 of 1999 -:7:- became decayed. The fact that in the re-sale it had to be sold for a lesser amount does not mean that the firewood had not become decayed. There was no difficulty for the appellants to take delivery of the firewood auctioned by him. At no point of time he had approached the authorities for taking delivery of the same nor did he send any letter to permit him to take the firewood. Since other bidders had already taken delivery of the firewood so bid in the auction, the contention that the plaintiff sustained loss because the sale was confirmed only on a later date, cannot be accepted at all.
7. Ext. B1 is the copy of the Gazette notification dated 15.6.1982 as per which it was notified that the auction would be conducted of the firewood on 16.6.1982. Ext.B2 contains the conditions pertaining to auction. It was mentioned in clause 3(1) that the competent officer was to confirm the sale. It was further mentioned there that the said officer can at any time confirm or reject the auction sale without assigning any reason. Clause 3(2) states that S.A. No. 442 of 1999 -:8:- the auction purchaser would be intimated of the confirmation of sale in the Form prescribed and that the auction purchaser has to send the balance amount and the counter signed challan. Admittedly, the plaintiff did not send or pay the balance amount. As per Ext.B2 it is the duty of the persons participating in the auction to see and verify the firewood or other properties put up for auction.
8. Learned Special Government Pleader (forest) would also draw the attention of the court to clause 10(1) and clause 10(2) of Ext.B2. As per clause 10(1), the auction purchaser has to deposit 1/3rd of the amount after deducting the earnest money deposited. Since the auction sale was for Rs.32,511/-, its 1/3rd would be more than Rs.10,000/-. Deducting Rs.5,000/- deposited as Earnest Money, the plaintiff was to deposit the balance amount. He did not do so. So even as per clause 10(1), the respondents were entitled to forfeit the sum of Rs.5,000/-. Clause 10(2) provides for payment of the balance bid amount. As per that condition, the balance amount is to be paid within 52 S.A. No. 442 of 1999 -:9:- days of informing the auction purchaser regarding the confirmation of the sale by the Depot Officer. That condition further stipulates that if the auction purchaser commits default in making the balance bid amount within 52 days, the Depot Officer is empowered to grant a further time of 30 days to make the deposit of the balance amount with interest. The failure to pay the said amount will empower the officer to set aside the sale and to forfeit the Earnest Money Deposit and that the re-auction will be conducted at the risks and costs of the defaulter. Clause 10 (4) also stipulates that the auction purchaser/defaulter would be liable for the loss or damage sustained on account of re-sale conducted with respect to the firewood or such other properties on the auction purchaser's failure to deposit the balance amount. Therefore, according to the respondents, since the appellant failed to deposit the amount even after information was given regarding the confirmation of sale, re-auction had to be conducted and in that re-auction the firewood happened to be sold for a S.A. No. 442 of 1999 -:10:- lesser amount which caused a loss of Rs.19,304.75
9. According to the defendant the auction was confirmed by the Conservator of Forest on 22.1.1983, the copy of which was marked as Ext.B3. The appellant was intimated of that fact on 4.2.1982 as per Ext.A11 letter. According to the appellant since he had already revoked the contract as per Ext.A4 letter dated 22.10.1982 it has to be found that there was no concluded contract since there was no acceptance so as to conclude the contract. But the respondents bank upon Section 79 of the Kerala Forest Act which reads thus:
"All money, other than fines, payable to the Government under this Act or any rule made thereunder, or on account of timber or forest produce or of expenses incurred in the execution of this Act in respect of timber or forest produce, or under any contract relating to timber or forest produce including any sum recoverable thereunder for the breach thereof or in consequence of its cancellation or under the terms of a notice relating to the sale of timber or forest produce by auction or by invitation of tenders, issued by or under the authority of a Divisional Forest Officer, and all S.A. No. 442 of 1999 -:11:- compensation awarded to the Government under this Act may, if not paid when due, be recovered under the law for the time being in force, as if it were an arrear of land revenue."
10. The learned counsel for the respondents has relied upon the decision of the Division Bench in Bhaskaran Nair v. State of Kerala, 1980 KLT 462, where it was held:
"Section 79 of the Kerala Forest Act, 1961 specifically provides that all money payable to the Government on account of timber or forest produce inclusive of any sum recoverable under the terms of a notice relating to sale of timber or forest produce by auction may, if not paid when due, be recovered under the law for the time being in force, as if it were an arrear of land revenue. What sought to be recovered from the appellant under Ext.P6 is an amount said to be recoverable from him under the terms of the notice relating to the sale of forest produce by auction and hence it falls directly within the scope of Section 79.
It cannot therefore be said that the respondents have acted without jurisdiction in initiating proceedings against the appellant under the Revenue Recovery Act for recovery of the said sum."
S.A. No. 442 of 1999 -:12:-
That decision was followed by another Division Bench in Kunjukrishnan v. State - AIR - 1983 Kerala 73. That was also followed in State of Kerala v. Aly - 1985 KLT
249.
11. Following the Full Bench decision in Abdul Rahiman v. Divisional Forest Officer 1988 (2) KLT 290, the lower appellate court has observed that there was no statutory contract between the parties. It was held by the Full Bench thus:
"In the present case, no contractual liability can be enforced as there was no contract complying with Article 299 of the Constitution. There was no statutory contract as the provisions of the Kerala Forest Act and the rules made thereunder do not provide for the creation of any such contract. However, a statutory liability, distinct from a contractual obligation is fastened on the parties under section 79 of the Forest Act."
Thus under section 79 all money payable to the Government under the terms of a notice relating to the sale of timber or forest produce by auction or invitation of tenders issued by or under the authority of a Divisional Forest Officer, if not S.A. No. 442 of 1999 -:13:- paid, when due could be recovered under the law for the time being in force as if it were an arrear of land revenue. In the present case, the Government was only claiming an amount under this statutory provision, thus enforcing a statutory liability. There is no constitutional embargo under Article 299 to enforce this statutory obligation.
12. The learned counsel for the appellant submits that under Sec. 5 of the Contract Act a proposal could be revoked at any time before the communication of its acceptance is complete as against the proposer and so, according to the learned counsel since he had sent a revocation letter it has to be found that there was no acceptance and as such there was no concluded contract. But in the light of the decisions referred to earlier it cannot be said that there was a statutory contract. Not only that there was no specific case that the contract was not accepted and no evidence was not led before the courts below, the learned Special Govt. Pleader submits. It is further submitted that since the offer and acceptance are S.A. No. 442 of 1999 -:14:- matters concerned with the facts of the case which are to be proved by adducing evidence, such a contention cannot be advanced in the Second Appeal.
13. In view of the specific provisions contained Sec. 79 of the Kerala Forest Act, the argument advanced by the learned counsel for the appellant cannot be sustained. The decision of the Division Bench in State of Kerala v.
Aboobacker Kutty - 1992 (2) KLT 939 has no application to the facts of this case since in that case the contract entered into as per the provisions of Article 299 of the Constitution of India was the issue and as such whether the proposal was accepted and whether there was communication of its acceptance were material, unlike in this case which is not a contract governed by Art. 299 of the Constitution of India.
14. The learned counsel has also relied upon the decision of the Supreme Court in Mohammed Basheer v. State of Kerala - 2003 (3) KLT 478 (S.C.) where it was held :
S.A. No. 442 of 1999 -:15:-
"We find substance in the argument. In the present case we find that there was only a bid for removal of residual tree growth and fire wood, a substantial part of which was destroyed in fire. It is under such circumstances, the appellant wrote to the divisional forest officer for cancellation of his bid or reduction of the bid amount. In the case of Abdul Rahiman's case (supra) the breach of contract stood admitted. In Abdul Rahiman (supra), the Full Bench referred to an earlier decision reported in 1980 KLT 850 and distinguished the same on the ground that what was sought to be recovered therein was not an amount due on account of or in respect of timber under any contract thereof and, thus, S.79 could not be invoked. The case of the appellant, however, appears to be squarely covered by the decision of the Kerala High Court reported in 1980 KLT 850."
The facts dealt with therein are entirely different. That was a case where the question was whether a damage has occurred. It was held that a finding of fact in that behalf must be arrived at by the competent authority, whereafter the amount of damages should be quantified. In that case there was only a bid for removal of residual tree growth and fire wood, a substantial part of which was destroyed in fire. It was under such circumstances, the appellant therein wrote to the Divisional Forest Officer for S.A. No. 442 of 1999 -:16:- cancellation of his bid or reduction of the bid amount. Therefore, that decision has absolutely no relevance to the facts of this case.
15. The decision in Nutakki Sesharatanam v. Sub Collector , Land Acquisition, Vijayawada and Others - (1992) 1 SCC 114 also has no application to the facts of this case since that was a case concerning the land acquisition under the Land Acquisition Act, 1894 where it was held that till the offer was accepted there was no contract between the parties and so the party was entitled to withdraw his offer. Similarly, the Supreme Court decision in State of Kerala v. Narayana Pillai - 2000 (1) KLT 166 (SC) is also inapplicable to the facts of this case since that was a case concerning the Abkari Shops (Disposal in Auction) Rules, 1974. The learned counsel for the appellant submits that there the auction sale had taken place on 27-3-1981 but confirmation of sale was not made by the Board of Revenue till 7-5-1981 and it was not communicated to the successful bidder till 11-5-1981 and so S.A. No. 442 of 1999 -:17:- the mandate of Rule 5 (14) to the effect that rejection or confirmation shall be conveyed "as soon as possible" was flouted.
16. The decision in Muthu Mohammed Rawther - Pathanamthitta Municipality - 1991 (2) KLT 514, was a contract between private parties. It was held therein that for an enforceable contract there should be an offer and on unconditional acceptance and that the person who makes an offer has the right to withdraw it before acceptance, in the absence of a condition to the contrary supported by consideration. As has been stated earlier, here, it was already found that there was no contract coming under Art. 299 of the Constitution of India but enforcement of a statutory liability which arose as per the provisions of the Kerala Forest Act and the Rules made thereunder which do not provide for creation of any such contract. It was a statutory liability, distinct from contractual obligations, that is fastened on the parties under Sec. 79 of the Forest Act.
S.A. No. 442 of 1999 -:18:-
17. It is submitted by the learned counsel for the appellants that since it is a movable property, the general principle that time is the essence of contract should be accepted as correct and since there was failure on the part of the respondent to confirm the sale within a reasonable time it has to be held that the appellant had suffered a lot. But as as been pointed out earlier, except stating that the firewood stacked there got decayed, no other evidence was adduced. Not only that other successful bidders who were also on the same footing had taken delivery of the firewood obtained in the auction conducted on the very same day. There was no difficulty for them to take delivery of the firewood. There was also no complaint from any of such bidders that the firewood was damaged. It is also of mention that the very same firewood was sold after a few months though the bid amount became less. As such the contention that because the confirmation letter was not received within two or three weeks, the appellant had suffered a lot as the firewood stacked there was found S.A. No. 442 of 1999 -:19:- unmerchantable, cannot be accepted. The courts below did not accept the contention so put forward by the appellant. At no point of time the appellant had approached the D.F.O. for taking delivery of the firewood sold in auction. It is also pointed out that the appellant is a seasoned bidder who used to purchase firewood lots, participating in such auction and so he cannot feign ignorance as to the procedure that was being followed by the Forest Department. When there is no acceptable evidence to show that the firewood was destroyed and became useless or unmerchantable, the contention that that was the reason for him not to take delivery of the same, cannot be accepted.
18. It was specifically pointed out by the learned Spl. Government Pleader Sri.Madhavankutty that after the confirmation of the sale conducted on 16-6-1982 two of the other bidders one Mr. Sainualdbeen and one M.V. George Kutty had deposited the balance bid amount and removed the firewood sold to them in the auction conducted on the S.A. No. 442 of 1999 -:20:- very same day. That also is projected by the respondents as a circumstance to show that the appellant was only finding out a reason to back out from the obligations and that there is no bonafides in the plea put forward by him. It is not a case where the contract became totally impossible of performance or that the contract was frustrated. As such, I find no merit in the contention advanced by the appellant that there was no acceptance of the contract and as such there was no concluded contract so as to enable the appellant to absolve himself of the liability to pay the balance amount as shown in the notice issued to him.
19. One more point has been canvassed by the learned Special Government Pleader Sri.Madhavankutty that the suit is barred by limitation. The suit was filed on 17-7-1989. The plaintiff seeks a declaration that the notice dated 4-2-1983 is illegal . The other relief sought for is that the order passed by the first defendant forfeiting a sum of Rs. 5,000/- is unauthorised, illegal and ab initio void. The cause of action for the same is also of the date 16-6- S.A. No. 442 of 1999 -:21:- 1982. There is a further claim for recovery of a sum of Rs. 9244.38 on the principal amount of Rs. 5,000/- paid as earnest money deposit.
20. The last prayer is to restrain defendant No.1 from realising any amount from the plaintiff on the basis of the notice dated 24-5-1989. It is very clear that the cause of action for the suit arose on the notice dated 4-2-1983. The suit should have been filed within three years from that date. That fact is not disputed by the plaintiff also. It is stated in the plaint that among other things the cause of action for the suit arose on 29-7-1987 the date on which this Court disposed of O.P. 2339/1987. That does not give rise to any fresh cause of action so as to file a suit for the reliefs claimed in the suit. Now the argument advanced by the learned counsel for the appellant is that the plaintiff is entitled to get exclusion of the time as provided under Sec. 14 of the Limitation Act. Though it was stated that O.P. 2331/1987 was filed, it was not stated that the plaintiff was bonafide prosecuting that matter with due diligence S.A. No. 442 of 1999 -:22:- and so he is entitled to exclusion of time under Sec.14 of the Limitation Act. Section 14 of the Limitation Act reads:
"14. Exclusion of time of proceeding bona fide in Court without jurisdiction :-
(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(3) Notwithstanding anything contained in R. 2 of Order XXIII of the Code of Civil Procedure, 1908, the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the Court under R. 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the Court or other cause of a like nature".
It is clear that the plaintiff who seeks exclusion of the time and claims benefit of Sec. 14 should plead and prove that he has been prosecuting a civil proceeding in a Court of first instance or of appeal or revision against the defendant S.A. No. 442 of 1999 -:23:- and such proceedings were prosecuted with due diligence and in good faith. There is absolutely no pleading on that point seeking benefit of Sec. 14 of the Limitation Act. Where a suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which the exemption from such law is claimed. It is so stated in Order VII Rule 6 of the Code of Civil Procedure. There is a proviso 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 ground set out in the plaint. There is nothing that sort in the plaint filed by the plaintiff. It is mandatory that the plaint shall show the ground upon which an exemption from law of limitation is claimed. There is absolutely no whisper in the plaint that the Writ Petition was filed by the plaintiff and was prosecuted by him with due diligence and in good faith. The learned Special Govt. Pleader for Forest would submit that it cannot be accepted that the plaintiff was prosecuting S.A. No. 442 of 1999 -:24:- diligently and in good faith because it is common knowledge that when the cause of action is founded allegedly on a contract or for recovery of money, challenging the demand notice, then certainly that has to be agitated by filing a suit before the Civil Court and a party cannot file a Writ Petition before the High Court under Art. 226 for seeking recovery of money. Therefore, it cannot be said that the appellant was pursuing an appropriate remedy before a right forum and as such the contention that the appellant is entitled to the benefit of Sec. 14 of the Limitation Act is also unmerited not only for want of pleadings but also for want of evidence on that point. It was held by the Division Bench in Managing Director , M/s. Larsen & Turbo, L & T House, Ballard Estate v. G.K. Granites and Others - 2011 (2) KLT 463 "The powers of the High Court under Art. 226 are wide enough to render full justice to parties. Therefore, if a writ petition filed and admitted in the High Court was later found to be not the remedy to be pursued by the party, it is always open to the High Court to consider waiver of loss of time for the party to pursue appropriate remedy before the right forum. However, going by the wording of S. 14 of the Limitation Act, we do not think the High Court can grant exemption from limitation under the said Section while dismissing a S.A. No. 442 of 1999 -:25:- writ petition as not the appropriate remedy. We have already stated that unless the ingredients of S. 14 are pleaded and proved before the Civil Court before which the subsequent litigation is filed in terms of Order VII R. 6 of the CPC, the Court cannot grant exemption from limitation in terms of the said Section. When the jurisdiction to grant exemption under S. 14 of the Limitation Act is exclusively given to the Civil Court before which suit is filed, it is not correct or proper for the High Court to consider eligibility for exemption of the petitioner while dismissing a writ petition". The trial court, considering the fact that the suit was filed far beyond the period of three years as provided under the Article 58 of the Limitation Act held that the suit is barred by limitation. It is true that no finding was entered by the lower appellate court regarding the plea of limitation. However, since it is a question of law, the learned Govt.,Pleader is perfectly justified in pointing out that question of limitation also. As has been stated earlier the suit was filed far beyond the period of three years . There is no pleading as required under Order VII Rule 6 of C.P.C. which mandates that there should be a specific pleading regarding the same. No evidence was also adduced on that point. Simply by stating that there was a Writ petition pending before this Court, the party cannot contend that S.A. No. 442 of 1999 -:26:- that amounts to sufficient pleading as required under Order VII Rule 6 of C.P.C. Those are matters to be claimed by raising necessary pleading in the plaint and it should be proved by adducing cogent evidence. That is an issue which arises for consideration before the trial Court. No specific plea was raised by the appellant based on Sec. 14 of the Limitation Act. Therefore, I hold that the suit is barred by limitation also. In the light of the findings entered, I find no merit in this second appeal and hence it is dismissed.
Dated this the 26th day of February, 2013.
N.K.BALAKRISHNAN, JUDGE ani/jjj S.A. No. 442 of 1999 -:27:- N.K.BALAKRISHNAN, J.
................................................................. S.A. No. 442 of 1999 .................................................................... Dated : 26th day of February 2013 JUDGMENT