Roop Lal v. Rameshwar Lal

Order

: 20th February 2008. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. Suresh Shrimali, Mr. Rajesh Choudhary, for the petitioner. Mr. Usman Ghani, for the non-petitioner. ... BY THE COURT:

This revision petition has been preferred by the plaintiff- petitioner against the judgment and decree dated 15.07.2002 passed by the Additional District Judge No.1, Bhilwara in Civil Appeal No.11/2002 whereby the learned Appellate Court has reversed the judgment and decree dated 31.01.2002 passed by the Additional Civil Judge (Junior Division) No.2, Bhilwara in Civil Suit No.16/1996 (194/1995). The plaintiff-petitioner sought recovery of an amount of Rs. 8,200/- from the defendant-non-petitioner by way of the suit aforesaid with the averments in the plaint that the defendant borrowed an amount of Rs.31,000/- on 23.10.1991 and agreed to return on demand and executed Promissory Note and Receipt in favour of the plaintiff; that the defendant made payment of Rs.22,800/- to the plaintiff but the remaining amount of Rs.8,200/- was not paid despite demands; and that [ 2 ] by way of a letter dated 20.10.1992 the defendant promised to make payment at the earliest. Stating the suit filed on

17.10.1995 to be within limitation for the defendant having admitted the dues on 20.10.1992, the plaintiff claimed a decree for the said amount of Rs. 8,200/-. The matter was put to trial after the defendant denied the alleged transaction and also raised the question of limitation. The learned trial court found proved the facts in issue Nos. 1 & 2 that the plaintiff advanced an amount of Rs.31,000/- as loan to the defendant who executed the Promissory Note (Ex.1) and the Receipt (Ex.2) in that regard; and in view of admission of the plaintiff about receipt of part payment in installments found that an amount of Rs.8,200/- remained due to be paid by the defendant thereunder. Issue No.3 and 4 were framed on the questions as to whether the defendant acknowledged the dues on 20.10.1992 and as to whether the suit was barred by limitation ? The learned trial court decided both these issues together and considering the post-card dated

20.10.1992 (Ex. 3) to be an acknowledgment of the dues by the defendant and, thus, counting from 20.10.1992, held the suit filed on 17.10.1995 within limitation. The learned Appellate Court, however, has not agreed with the learned trial court, particularly in relation to the inference drawn on the post-card (Ex. 3); and with the finding [ 3 ] that the said post-card cannot be co-related with the loan in question, has held that the said document does not confirm to the requirements of an acknowledgment within the meaning of Section 18 of the Limitation Act. Accordingly, the Appellate Court has found the suit filed on 17.10.1995 barred by limitation with reference to the date of Promissory Note and Receipt i.e.,

23.10.1991. The plaintiff has filed this revision petition against the judgment and decree aforesaid. This revision petition was admitted on 03.11.2003 and then, record was requisitioned on

02.09.2005. However, on 22.05.2006, upon a statement made by the learned counsel for the defendant-non-petitioner that the petitioner has since expired, learned counsel appearing for the petitioner stated want of information and prayed for time to seek instructions. The matter was adjourned and nearly 22 months thereafter, has come up for consideration today. No application for substitution of the legal representatives of the deceased petitioner has been made in this case. Learned counsel appearing for the petitioner states that despite sending information and seeking instructions, he has not received any response from the legal representatives of the deceased petitioner. Learned counsel for the non-petitioner submits that to his information, the petitioner expired on 15.12.2004. [ 4 ] In view of the submissions so made by the learned counsel for the parties, the position obtainable is that the petitioner is said to have expired more than three years back and no steps have been taken for substitution of his legal representatives. Looking to the subject matter of litigation, being a suit for recovery of an amount of Rs.8,200/- that has been found barred by limitation by the Appellate Court, it appears that the legal representatives of the deceased petitioner have lost interest in pursuing the matter. Be that as it may, there appears no reason to continue with this revision petition any further. Moreover, this being a petition for revision under Section 115 of the Code of Civil Procedure, the record of the case has been examined; and there does not appear any illegality or even irregularity in exercise of jurisdiction by the learned Appellate Court in not accepting the document Ex.3 as an acknowledgment of liability and in finding the suit to be barred by limitation. Noteworthy it is that the plaintiff alleged payment of Rs.22,800/- by the defendant from time to time against the Promissory Note in question but no corroborative evidence was adduced in regard to any payment made by the defendant. In the post-card (Ex.3) the defendant had only stated that some amount was to be deposited with the plaintiff but had referred to [ 5 ] the fact that some 'party' has said that the amount would be received after Deepawali; and the defendant said that money would come on 28th or 29th because he had paid a visit himself and had requested to bear with him as the amount taken was to be paid with all humility. Having perused the record of the case, this Court is satisfied that the post-card (Ex.3) cannot be co- related with the Promissory Note (Ex.1) and cannot be considered an acknowledgment of the liability in question so as to provide limitation to the plaintiff. The conclusion reached by the learned Appellate Court cannot be said to be perverse or suffering from any such illegality that might be taken up for interference in revisional jurisdiction of this Court. Viewed from any angle, this revision petition deserves to be dismissed. The petition is, therefore, dismissed. No costs. (DINESH MAHESHWARI), J. Mohan/