B. Veerappa, J.—This is an unsuccessful plaintiff''s regular second appeal against the judgment and decree dated 8-11-2013 made in R.A. No. 105 of 2012 on the file of the Itinerary Senior Civil Judge and Judicial Magistrate First Class, Madhugiri (sitting at Pavagada), confirming the judgment and decree dated 18-10-2012 made in O.S. No. 169 of 2010 on the file of the Civil Judge and Judicial Magistrate First Class, Pavagada dismissing the suit of the plaintiff for recovery of money mainly on the ground that the suit filed by the plaintiff is barred by limitation.
2. The plaintiff filed the suit for recovery of money of a sum of Rs. 30,960/- with interest at 2% per month from the date of suit till the date of realisation contending that the defendant has borrowed Rs. 18,000/- from the plaintiff for his family legal necessities by executing on demand promissory note dated 14-5-2007 agreeing to repay with interest at 2% per month. In spite of repeated demands the defendant has not paid the amount borrowed. Therefore the plaintiff was constrained to file the suit.
3. The defendant filed written statement denying the execution of pro-note and passing of consideration and contended that there was no necessity for the defendant to avail loan from the plaintiff. The suit is barred by limitation. The plaintiff is a professional money lender having no licence. "There is no cause of action for the suit and therefore, the suit is liable to be dismissed.
4. Based on the aforesaid pleadings, the Trial Court framed the following issues:
"1. Whether plaintiff proves that the defendant borrowed money by executing on demand promissory note?
2. Whether the defendant proves that plaintiff is a money lender without licence?
3. Whether the suit is barred by limitation?
4. Whether plaintiff is entitled for the relief sought?
5. What order or decree?"
5. In order to substantiate the plaintiff''s case, the plaintiff was examined as P.W.1 and two witnesses were examined as P.Ws. 2 and 3 and marked the document Ex. P. 1.
Defendant was examined as D.W. 1 and no documents were marked.
6. The Trial Court on considering both oral and documentary evidence on record, recorded a finding of fact that the plaintiff proved that the defendant has borrowed money by executing on demand promissory note. The defendant failed to prove that the plaintiff is a professional money lender without licence and held that the suit filed by the plaintiff is barred by limitation. Accordingly the suit came to be dismissed on 18-10-2012.
7. Aggrieved by the said judgment and decree of the Trial Court, the plaintiff/appellant filed R.A. No. 105 of 2012 on the file of the Itinerary Court of Senior Civil Judge, Pavagada, who after hearing both the parties concurring with the findings of fact recorded by the Trial Court dismissed the appeal on the ground the suit filed by the plaintiff is barred by limitation.
8. The concurrent findings of fact recorded by both the Courts below did not deter the appellant from preferring this regular second appeal as a last ditch attempt.
9. I have heard the learned Counsel for the parties to the lis.
10. Smt. M.V. Thanuja, learned Counsel representing Sri Erappa Reddy M., learned Counsel for the appellant contended that both the Courts below erred in dismissing the suit filed by the plaintiff mainly on the ground that suit is barred by limitation ignoring the fact that on demand promissory note was executed by the defendant on 14-5-2007 and the suit was filed on 24-5-2010 on the re-opening day of the Summer Vacation 2010, since the suit should have been filed on or before 14-5-2010, during the said period there were Court holidays therefore, it should be treated as the suit was filed within three years period after excluding the holidays. She further contended that both the Courts below failed to consider the provisions of Section 4 of the Limitation Act, 1963, thereby proceeded to pass the impugned judgment and decrees, hence sought to set aside the impugned judgment and decree of the Courts below.
11. Per contra, Sri K. Murthy learned Counsel for the respondent sought to justify the impugned judgment and decree of the Courts below and contended that the present appeal is not maintainable before this Court under Section 102 of the Code of Civil Procedure, 1908 since the suit is filed for recovery of Rs. 18,000/- with interest at 2% per month from the date of suit till the date of realisation, therefore, the appeal is not maintainable. He further submitted that the suit should have been filed on or before 14-5-2010, but the suit was filed on 24-5-2010. Therefore, he prays for dismissal of the suit.
12. While admitting the appeal, this Court framed the following substantial question of law:
"Were the Courts below justified in dismissing the suit of the plaintiff as barred by limitation in view of the provisions of Section 4 of the Limitation Act?"
13. I have given my thoughtful consideration to the arguments advanced by learned Counsel for both the parties and perused the entire material on record.
14. The admitted facts are that the suit filed by the plaintiff is for recovery of a sum of Rs. 30,960/- with interest at 2% per month from the date of suit till the date of realisation; that the defendant has executed on demand promissory note as per Ex. P.1 and Exs. P. 1(a) and P. 1(b) are signatures of the defendant and Exs. P. 1(c) and P. 1(d) signature of the witnesses and Ex. P. 1(e) is the signature of P.W. 3, except denying the plaint averments that the suit filed by the plaintiff is barred by limitation, the defendant has not adduced any evidence or produced any material documents to disprove the claim of the plaintiff. The Trial Court recorded a finding that the plaintiff proved that the defendant has borrowed money by executing on demand promissory note as per Ex. P.1 and also held the defendant failed to prove that the plaintiff is a professional money lender without licence and proceeded to dismiss the suit mainly on the ground that Ex. P.1 pro-note was executed on 14-5-2007 and plaint was presented on 24-5-2010 and that suit was not filed within three years from the date of loan advanced, suit ought to have been filed on or before 14-5-2010, but there was 10 days delay in filing the suit, therefore dismissed the suit. The lower Appellate Court concurred with the findings of the Trial Court and dismissed the appeal.
15. Both the Courts below failed to notice that the provisions of Section 4 of the Limitation Act reads as under:
"Section 4. Expiry of prescribed period when Court is closed.-Where the prescribed period for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the date when the Court re-opens."
A plain reading of Section 4 of the Limitation Act makes it clear that when the period of limitation prescribed in a suit expires on a day when the Court was closed the suit may be instituted on the day when the Court re-opens.
16. The object of Section 4 of the Limitation Act is to obviate the difficulty and relieve the hardship of filing the suit in the event of the last day for filing the suit being a holiday or the Court closed for any reason. In the situation of the suit getting barred by limitation during the vacation or holidays of the Court, the suit presented immediately on the reopening day after such closure or vacation is expressly saved by Section 4 of the Act, the Limitation Act. Notwithstanding the expiry of time for filing the suit on any day during the vacation, holiday or period during which the Court is closed the suit presented on the reopening day after such holiday or vacation is not barred by limitation as Section 4 of the Act, takes care of such a situation. Section 4 of the Act removes the bar of limitation if the suit is presented in the Court having jurisdiction immediately after holidays.
17. The Privy Council in Maqbul Ahmad v. Onkar Pratap Narain Singh, AIR 1935 PC 85, while considering Section 4 of the Limitation Act held as follows:
"The language of Section 4 is such that it seems to their Lordships to be impossible to apply it to a case like the present. What it provides is that where the period of limitation prescribed expires on a day when the Court is closed, the application may be made on the day when the Court re-opens. In their Lordships'' view that means the proper Court in which the application ought to have been made."
18. In the present case, the Appellate Court has proceeded to dismiss the appeal mainly on the ground that the plaintiff was not prevented from instituting the suit during summer vacation. During summer vacation there will be Vacation District Judge to deal with the emergent cases of the concerned District. The said finding is erroneous, contrary to the provisions of Section 4 of the Limitation Act and contrary to vacation notification issued by this Court at the relevant point of time.
19. The provisions of Section 28 of the Karnataka Civil Courts Act, 1964, reads as under:
"28. Vacation.
(1) The Civil Courts in the State or in any area of the State shall be closed on such days as may be notified by the State Government as public holidays for the whole State or for such area in the State.
(2) The Civil Courts shall have three vacations in each year, namely, Summer, Dasara and Winter, and the total number of the said three vacations shall not exceed sixty days and the High Court shall fix the period of each vacation.
(3) Notwithstanding anything contained in this Act or in the Code of Civil Procedure, 1908 (Central Act 5 of 1908).-
(a) the High Court, may where there is more than one District Judge in any District Court, designate by notification any one of those District Judges as the Vacation District Judge for the duration of the adjournment of any District Court in;
(b) where there is only one District Judge in any district, the High Court may, by notification, designate such District Judge or appoint a Senior Civil Judge in the district as the Vacation District Judge or the Vacation Senior Civil Judge, as the case may be, of the District Court thereof for the duration of the adjournment of such District Court in any vacation or of any part thereof.
The High Court may regulate, by special or general order, work to be discharged by the Vacation Senior Civil Judge or the Vacation District Judge.
(4) (a) The local limits of the jurisdiction of the Vacation District Judge or Vacation Senior Civil Judge shall be the same as those of the District Court concerned.
(b) The jurisdiction of the Vacation Senior Civil Judge shall extend to all suits, appeals and other proceedings pending in, or cognisable by any Civil Court (whether a District Court, a Court of the Senior Civil Judge or a Court of Civil Judge in the District concerned when such Court is adjourned for any vacation.
(5) The place at which the Court of the Vacation District Judge or the Vacation Senior Civil Judge shall be held, shall be the same as the place at which the District Court concerned may be held. The Vacation District Judge or the Vacation Senior Civil Judge shall have such administrative control over the staff of the several Civil Courts in the District, as the High Court may, by general or special order, determine.
(6) Notwithstanding the appointment of the Vacation District judge or the Vacation Senior Civil Judge, every Civil Court in the District shall, during the period it is adjourned for any vacation, be deemed to be closed for the purposes of Section 4 of the Limitation Act, 1963 (Central Act 36 of 1963).
(7) On the reopening of the District Court, a Court of a Senior Civil Judge or a Court of Civil Judge after any vacation, all suits, appeals and other proceedings pending in the Court of Vacation District Judge or Vacation Senior Civil Judge which, but for this section, would have been instituted or pending in such District Court, Court of a Senior Civil Judge or Court of a Civil Judge, as the case may be, shall stand transferred to such District Court, Court of the Senior Civil Judge or Court of Civil Judge, and any decree, order or proceeding passed by the vacation District Judge or the Vacation Senior Civil Judge shall, after such transfer, be deemed to be a decree, order or proceeding passed by the Court concerned.
(8) Notwithstanding the provisions of sub-section (7), any appeal from the decree or order of the Court of the Vacation District Judge or the Vacation Senior Civil Judge shall, when such appeal is allowed by law, lie to the High Court."
Sub-section (6) of Section 28 of the Karnataka Civil Courts Act, 1964, starts with the obstante clause that the appointment of the Vacation District Judge or the Vacation Senior Civil Judge, every Civil Court in the District shall, during the period it is adjourned for any vacation, be deemed to be closed for the purpose of Section 4 of the Limitation Act, 1963 (Central Act 36 of 1963).
20. The Registrar General, High Court of Karnataka, Bangalore, issued communication dated 5-3-2010 to all the Principal District and Sessions Judges in the State of Karnataka, which reads as under:
"To:
The Principal District and Sessions Judge, Bangalore Rural, Bagalkot, Belgaum, Bellary, Bidar, Bijapur, Chamarajanagar, Chikmagalur, Chikballapura, Chitradurga, Davanagere, Dharwad, Gadag, Gulbarga, Hassan, Haveri, Dakshina Kannada, Mangalore, Uttar Kannada, Karwar, Kodagu-Madikeri, Kolar, Koppal, Mandya, Mysore, Raichur, Ramanagar, Shimoga, Tumkur, and Udupi, Yadgir.
Sir,
Sub.: Appointment of Vacation District Judges/Civil Judges for the ensuing Summer Vacation of 2010, calling for proposals - Reg.
Section 28(3)(a) and 28(3)(b) of the Karnataka Civil Courts Act, 1964, provides for appointment of Vacation District/Civil Judges "to deal with urgent matters during Vacation". Hence, Vacation District/Civil Judges have to be appointed for the ensuing Summer Vacation commencing from Monday the 26th April, 2010 to Sunday the 23rd May, 2010 (bdi)."
(emphasis supplied)
21. The Hon''ble Chief Justice on Administrative Side exercising powers conferred by clauses (a) and (b) of sub-section (3) of Section 28 of the Karnataka Civil Courts Act, 1964, vide notification dated 21-4-2010 has designated the District Judges/Civil Judges mentioned in column (2) of the table as the Vacation Judges, for the duration of adjournment of District Courts mentioned in column (3) for Summer Vacation 2010, noted in column (4). Parts II and IV of the said notification reads as follows:
"PART II
In exercise of the powers conferred under sub-section (3) of Section 28 of the Karnataka Civil Courts Act, 1964, the Vacation Judges are directed to dispose of urgent civil matters in which injunction, stay of proceedings and attachment orders etc., are sought for during the Summer Vacation of 2010.
PART IV
Wherever the Civil Judges (Senior Division) mentioned in column (2) are designated as Vacation Civil Judges, the District Judges are directed to issue a notification as required under sub-section (3) of Section 10 of the Criminal Procedure Code, 1973 making provisions for the disposal of any urgent application appointing such officers."
22. In view of the provisions of Section 28 of the Karnataka Civil Courts Act, 1964, the communication, and the notification issued by this Court on administrative side stated supra, makes if clear that only urgent matters in cases of injunction, stay of proceedings and attachment orders etc., can be entertained during Summer Vacation. In the present case, suit is filed only for recovery of money and no urgency was involved, question of filing the suit during summer vacation does not arise. In the present case, the suit was filed on the re-opening day i.e., on 24-5-2010 within three years as contemplated and the same is in compliance with the provisions of Section 4 of the Limitation Act and the observation made by the Courts below that plaintiff was not prevented from instituting the suit during summer vacation is contrary to the notification issued by this Court and contrary to Section 4 of the Limitation Act.
23. The Hon''ble Supreme Court while considering the provisions of Article 116(b) of the Limitation Act in the case of State of Rajasthan v. Harphool Singh (dead) through his L.Rs'', (2000) 5 SCC 652, held at paragraph 9 as under:
"9. Adverting first to the question of limitation, on which also the First Appellate Court chose to reject the appeal before it and pursued before us though not considered by the High Court, we find from the materials placed on record that the Trial Court delivered its judgment on 10-4-1989, that on 11-4-1989, the State applied for a copy of the judgment and the summer vacation started on 9-5-1989. It is stated that after the receipt of the copy of the judgment on 9-5-1989, an application for a copy of the decree was made only on 12-5-1989 and the appeal was filed on 3-7-1989, the date on which the Courts were said to have reopened after summer recess. If the copy of the judgment dated 10-4-1989 was furnished on 9-5-1989, the limitation for filing the appeal would extend up to 8-6-1989 and if during such period on 12-5-1989 a copy of the decree was applied for it cannot be said to have been made after the limitation period was over and having regard to the intervening summer recess, the filing of the appeal on the reopening day after obtaining the decree copy also, together with copies of judgment and decree on the first day of the reopening after vacation would be well-within the period of limitation and there is no merit in the said ground assigned by the First Appellate Court. Our attention has also been drawn to the original records where we found a specific endorsement made after processing the appeal papers by the office of the First Appellate Court, that the appeal has been filed within time. The First Appellate Court, therefore, was in error in holding to the contrary."
24. In view of the reasons stated above, the substantial question of law has to be answered in the ''Negative'' holding that the Courts below were not justified in dismissing the suit of the plaintiff mainly on the ground that suit filed is barred by limitation in view of the provisions of Section 4 of the Limitation Act.
25. Insofar as the arguments advanced by the learned Counsel for the respondent that the present regular second appeal filed before this Court under Section 100 of the Code of Civil Procedure is not maintainable in terms of the provisions of Section 102 of the Code of Civil Procedure on the ground that the suit filed for recovery of Rs. 18,000/- cannot be accepted for the simple reason that admittedly the present suit is filed by the plaintiff for recovery of Rs. 30,960/- with interest at 2% per month from the date of suit till the date of realisation. Section 102 of the Code of Civil Procedure deals with:
"No second appeal in certain cases. - No second appeal shall lie from any decree, when the subject-matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees."
26. In the present case, the subject-matter of the original suit is Rs. 30,960,-with interest at 2% per month from the date of suit till the date of realisation, therefore, the contention of the learned Counsel for the respondent cannot be accepted. The present regular second appeal is maintainable since the subject-matter of the suit is for recovery of a sum of Rs. 30,960/- which is beyond the limit prescribed under Section 102 of the Code of Civil Procedure.
27. It is not in dispute that both the Courts have proceeded to dismiss the suit mainly on the basis that the suit filed by the plaintiff is barred by limitation. This Court while answering the substantial question of law has held that the suit is not barred by time and suit is filed within time in view of the provisions of Section 4 of the Limitation Act and the notification issued by the Hon''ble Chief Justice of this Court on the administrative side as stated supra.
28. It is also not in dispute that both the Courts below concurrently held that the plaintiff has proved that the defendant has borrowed the money and executed on demand promissory note-Exs. P.1 to P. 1(a) to P. 1(e) and the defendant has failed to prove that the plaintiff is a money lender without any licence. Admittedly, the said finding of fact recorded by the Courts below is not at all challenged by the defendant either before the Lower Appellate Court or before this Court. In the absence of any challenge to the finding with regard to the proof of Ex. P. 1-on demand pronote and holding of licence by the plaintiff as on the date of the suit, the question of re adjudication by the Trial Court on law of limitation does not arise. Since this Court held that suit is filed within 3 years as contemplated.
29. In view of the aforesaid reasons, this appeal is allowed and the impugned judgment and decree passed by the Courts below are set aside. The original suit-O.S. No. 169 of 2010 is decreed in part granting decree for recovery of a sum of Rs. 30,960/- with interest at 8% per annum from the date of the suit till realisation which would be reasonable taking into consideration the facts and circumstances of the present case.
