Kama vs Sundar and Others

R.C. Lahoti, J.

The defendant/appellant is aggrieved by the decree concurently passed by the two Courts below directing a suit for redemption of mortgage of a house to be decreed in favour of the Plaintiff/respondents.

Vide order dated 25/11/80 this appeal was admitted for hearing par-tion on the following 2 substantive questions of law :

(i) Whether the certified copy of the Plaint pertaining to the suit instituted by Ganpatiya is not proved according to law;

(ii) Whether the suit was barred by time ?

The factum of mortgage and the entitlement of the Plaintiff/respondents to redeem the property mortgaged by the two Courts below. The sole question surviving for adjudication relates to limitation, that is, whether the suit is barred by time filed within the prescribed period of limitation. The sheet anchor of the Plaintiff''s claim in that regard is acknowledgment of mortgage made by the mortgagee in the plaint filed by him in Civil Original Suit No. 426- A/63 (New No. 55/64) containing an acknowledgment of mortgage within the meaning of Section 18 of the Indian Limitation Act, 1963.

Section 18 (1) of the Limitation Act, which is relevant for disposal of the appeal, reads as under :

Effect of acknowledgment in writing.

(1) where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property of right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.

It is forcefully contended by the learned counsel for the defendant/appellant that to be an acknowledgment extending the period of limitation, it is necessary that it should be in writing and signed by the party In the present case, the plaintiff/respondents have failed in proving that the plaint was signed by the mortgage and hence the ingrediants of Section 18 were not satisfied, submits the learned counsel

Having heard the learned counsel for the parties Court is satisfied that the contention raised on behalf of the appellant amounts merely harping upon the tune of technicalities and not standing upon the soil of substance. Indeed, the contention as has been advanced before this Court for the first time, was not advanced before any of the Courts below. The contention has to be rejected for reasons more than one.

Vide para 7 of the plaint, the Plaintiff herein has made a very specific averment that the mortgagee had filed Civil Original Suit No. 426-A/63 wherein the mortgage was specifically acknowledged and that acknowledgment extended the period of limitation within the meaning of the Limitation Act, 1963 In the written statement the defendant has not specifically defined this averment and made a vague and general averment that the period of limitation was not extended.

Mulchand (PW 2) proved the original plaint Ex. P/2. (Certified copy marked as Ex P/2-C). He was not cross examined at all. None of the defendants appeared in the witness box nor adduced any evidence in rebuttal. It is noteworthy that Civil Original Suit No 426-A/63 had been a subject matter of appeal and then second appeal to this Court. Copies of judgments therein were filed and exhibited before the trial Court.

The sum and substance of the submission made by the learned counsel for the appellant is that the evidence adduced by the plaintiff/respondents falls short of proving that the plaint containing the acknowledgment was signed by the mortgagee. Technically, the learned counsel for the appellant may be right. However, a civil suit has to be decided not by testing impact of the testimony with technicality but by applying the principle of perponderence of the probabilities, in the back drop of the definition of term ''proved'' occuring in Section 3 of the Indian Evidence Act, 1872. A Plaint filed in the Civil Court has to be signed by the party and his pleader as prescribed by Order 6, Rule 14 CPC. It can very well be presumed that the plaint was so signed If only it would not have been so signed, it would have been directed to be taken off the file and the litigation originating with that plaint would not and could not have travelled upto this Court in second appeal. If only, the availability of that Plaint as an acknwledgment was sought to be objected to, on the ground of its having not been signed, the defendant in his written statement herein should have specially taken that plea in the written statement, in face of the pleadings raised in the plaint. As already noticed, such a plea is not to be found taken in the written statement, nor raised before any of the Courts below.

A fact is said to be proved, inter alia, when after considering the matters before it, the Court considers its existence so probable that a prudent man ought to act upon the suposition that it exists. Recently in Devendra Bhai Shankar Mehta Vs. Rameshchandra Vithaldas Sheth and another, their Lordships have held :

It is always permissible to draw reasonable inference from the facts established in a proceeding and such reasonable inference cannot be termed as finding based on surmise and conjecture. There is no manner of doubt that in any proceeding, judicial or quasi-judicial, there is requirement of proof and such requirement cannot be substituted by surmise and conjecture. But proof may be established directly on the basis of the evidence adduced in the proceeding or the allegation of fact may be established by drawing reasonable inferences from other facts established by evidence.

In Diva Kaluji Vs. Silver Cotton Mills Ltd., the Division Bench of High Court of Bombay consisting of Chagla C J. and Dixit J. (as their Lordships then were) held :-

There are occasions when the Court is compelled to draw inference which naturally and inevitably arises from such evidence as there is on the record. The mere paucity of evidence should not relieve where Court of its obligation to come to a conclusion on necessary and material issues.

The only reasonable and prudent inference inevitably flowiyg in the facts and circumstances of the case, on the pleadings and the state of evidence, is that the plaint, Ex. P/4 was signed by the mortgagee. Certified copy of the plaint Ex. P/4-C as available on the record does show that it was subscribed to by the plaintiff therein (who is the mortgagee) and there is no reason to assume that any one other than the plaintiff would have signed the plaint.

The upshot of the above discussion is that the Courts below did not err in any manner whatsoever in extending the benefit of Section 18 of Limitation Act to the plaintiff/respondents herein and consequently holding the suit to have been filed within the prescribed period of limitation.

The appeal is held to be devoid of any merit. It is dismissed with costs. Counsel''s fee as per schedule, if pre-certified.