Judgement DAVE, J.:- This is an appeal by the plaintiff against the judgment and decree of the District Judge, Ganga-nagar, dated, 9-4-1951. 2. The facts giving rise to it are that the plaintiff-appellant brought a money suit for Rs.10,000/- in the Court of District Judge, Ganga-nagar on 4-1-1947 on the basis of a bond dated 25-5-1934 which is marked Ex.P.1. It was averred by him that Basti, who was father of defendants 1, 2, and 3 (Ramrikh Ganesha and Sureta) and Bakhta, who was father of defendants 4 to 7 (Panna, Parsa, Moola and Sheodayal) had executed the said document in his favour for an amount of Rs. 5700/- which were found outstanding against them on the date of its execution. The said amount was payable in 57 annual instalments beginning from Samwat year 1991 and ending in Samwat year 2047. Then it was stated that the defendants had paid the instalments from Samwat 1991 to Samwat 1997 and that they stopped payment thereafter. In this manner only Rs.700/-were paid and the principal) amount of Rs.5000/-still remained unpaid. According to the plaintiff, he was entitled to get interest at 12 per cent per annum according to the terms of the bond and, therefore, he added Rs. 5000/- for interest up to the date of the suit and prayed that a decree for Rs.10,000/- be passed against the defendants. 3. The defendants denied the execution of the document sued upon, and pleaded that they, had no knowledge if it was executed by their parents. They raised several other objections including that of limitation. The trial Court thereupon framed seven issues. It was found by that Court that the document Ex.P.1 was executed by Basti and Bakhta but the suit was dismissed on the ground of limitation. The Court came to the conclusion that the bond contained a default clause whereby the entire amount of the bond became payable on default of payment on the due date on which an instalment was to be paid. It also came to the conclusion that only five instalments were proved to have been paid to the plaintiff and the payments of sixth and seventh instalments were not proved. According to that Court, the payment of the sixth instalment was due on 14-1-1940 and since waiver was not proved by the plaintiff, the period of limitation for the entire amount commenced from that date. According to that Court, the payment of the sixth instalment was due on 14-1-1940 and since waiver was not proved by the plaintiff, the period of limitation for the entire amount commenced from that date. The period of limitation prescribed in money suits by the Law of Limitation prevailing in Bikaner was six years. The Suit in the present case was brought on 4-1-1947. The last date, according to the trial Court, on which the suit should have been filed was 13-1-1946 and, therefore, the claim was held to be time barred. It may be mentioned here that although the suit was originally filed in the Court of District Judge, Ganganagar, the case was decided by the Sub-Judge, Suratgarh because of the change of jurisdiction, of the Courts and it was dismissed by that Court on 26-8-1949. 4. The plaintiff went in appeal to the Court of District Judge, Ganga-nagar but with no success. Hence this second appeal. 5. The first question for determination before this Court is whether the plaintiffs claim was filed within the period of limitation. Learned Counsel for appellant has urged that if this Court also finds that the suit was time-barred, then he should be permitted to amend the plaint and, therefore, the next question to be decided is whether an amendment can be allowed at this stage. 6. In order to understand the arguments raised by the appellants learned advocate, it seems proper to set out the relevant portion (regarding the terms) of the bond on which the suit is founded. After saying that Basti and Bakhta were liable to pay Rs.5700/- to the plaintiff, it is written therein that they agreed to pay the said amount by annual instalments of Rs.100/- without any interest from Lohri of Samwat 1991 Vikrami to Lohri of Samwat 2047. It was further agreed that if the instalments were not paid annually on the date, then in case of that default, the creditor would be entitled to realise interest from the date of the bond at Re. 1 per cent, per mensem and that he would also be entitled to recover the whole amount from the person and property of the debtors. 7. Learned counsel for appellant has stated at the time of arguments that the festival of Lohri comes on Posh Shukla 5 every year and, therefore, the payment of first instalment was due on 9-1-1935. 1 per cent, per mensem and that he would also be entitled to recover the whole amount from the person and property of the debtors. 7. Learned counsel for appellant has stated at the time of arguments that the festival of Lohri comes on Posh Shukla 5 every year and, therefore, the payment of first instalment was due on 9-1-1935. The corresponding dates according to the Gregorian calendar on which the instalments were due and on which they were actually paid have been pointed out by learned counsel as follows: Instalments Due date of payment Date on which payment, was actually made. 1st 9-1-1935 30-5-1935 2nd 30-12-1935 27-6-1938 3rd 17-1-1937 2-6-1937 4th 6-1-1938 12-6-1938 5th 26-12-1938 13-1-1940 6th 14-1-1940 8. Learned counsel has candidly conceded that since both the Courts below have come to a concurrent finding of fact, that the payment of sixth and seventh instalments was not proved, he would not agitate this question here in second appeal. It is also not disputed that if the cause of action for the entire amount arose on 14-1-1940, then the suit on the date of its presentation on 4-1-1947 was beyond the period of six years which was prescribed by the Bikaner Law of Limitation, which was in force on that date. He has, however, urged that the Government of Bikaner had issued certain notifications on account of which the institution of civil suits against agriculturists was suspended and if that period were excluded by the Courts below, it would have been found that the suit was well within limitation. He has referred to three notifications in this Court. A reference to these notifications was also made in the first appellate Court but the originals were not produced there and, therefore, the Court was not able to decide whether the circulars were applicable to the present case. It appears from the record of the trial Court that no reference was made to them in that Court. 9. The first notification is No.39 dated 8-10-1938. The relevant portion runs as follows: "In view of the prevalence of scarcity of grass and fodder, and due to partial failure of crops to the non-irrigated portions of the State, His Highness the Maharajah has been graciously pleased to command that the following measures; be adopted for the relief of his beloved subjects: 1....................... 2....................... 3........................... 4. Suspension of Litigation. 2....................... 3........................... 4. Suspension of Litigation. The suspension till the end of October 1939 of the execution of civil decrees and of litigation against agriculturists in the non-irrigated portion of the State. 5........................... Notification No.63 dated 3-11-1939. 5. Under His Highness command, the following measures have been adopted for the relief of his subjects: 1........................... 2........................... 3........................... 4. Suspension of Litigation. The suspension till the end of October 1940 has been ordered of the execution of Civil decrees and of litigation against (A) agriculturists in the non-irrigated portion; and (B) the Chiefs and Nobles and other Jagirdars of the State. Notification No.62 dated 8-11-1940. In continuation of this office Notification No.63, dated 3-11-1939, His Highness the Maharajah has been graciously pleased to command that the suspension of the execution of civil decrees and of litigation against agriculturists in the non-irrigated portions of the State shall be continued till the end of September 1941. 10. It certainly appears from the said notifications that litigation against agriculturists in the non-irrigated portion of the Bikaner State was suspended from 8-10-1938 to 31-10-1939, from 3-11-1939 to 31-10-1940 and from 1-11-1940 to 30-9-1941. The question, however, arises whether these notifications could be applied to the present case, because unless the plaintiff is able to establish that the defendants were living in Bikaner during this period and also that they were agriculturists in the non-irrigated portion of the State, he cannot derive any benefit from these orders. Learned advocate for respondents has seriously contested the applicability of these notifications to his clients. It has been urged before us that the defendants were living in Sherewala outside the jurisdiction of the State of Bikaner during the said period and these notifications did not apply to them. It has also been vehemently contended that if the plaintiff wanted to take advantage of these notifications for the purpose of extending the period of limitation, he should have taken that specific plea and set out the facts showing the extension of the period of limitation. Learned counsel for the appellants has urged that he should be permitted to amend the plaint on this ground. He has referred to his application for amendment dated 27-8-1952. Learned counsel for the appellants has urged that he should be permitted to amend the plaint on this ground. He has referred to his application for amendment dated 27-8-1952. The language of the amendment which was sought in that application runs as follows: Para No.5-A - "Yah hai ki mudayalehtm kashtkar pesha hai aur Bhagibandar ke vasinde va kashtkar hain jo gaon barani (unirrigated) area Suratgarh tehsil ka hai aur isliye Bikaner State ke Prime Minister ke Notification ka No.39 D/-8-10-38, No.1 D/2-1939 No.60 D/4-11-1939, No.63 D/3-11-1939 va No.62 D/8-11-40 ke anusar dibani dava roke gaye vo tamam arsa mayad mukarir me se bad dene par dava haja andar mayad hai aur dava haja isliye bhi andar mayad hasb dafa 13 Kanun mayad hai ke mudaylenam ilake Bikaner se barah sal se jyada arse tak bahar rahe hain." 11. It would appear from the above prayer that the amendment was sought on two basis i.e. firstly on the ground that the period given in the said notifications should be excluded and secondly, that the suit was within limitation under S.13, Limitation Act because the defendants had lived outside Bikaner for more than 12 years. Learned counsel for respondents has urged that when the appellant himself was saying that the defendants were out of Bikaner for more than 12 years, then the plaintiff could not at the same time take advantage of the said notifications, because if the defendants were not living in Bikaner, the said notifications did not apply to them and there was no bar against the plaintiff for bringing the suit against them. Learned counsel for appellant has urged that the defendants had gone out of Bikaner for only two years and not 12 years and that the word "twelve" was inserted by mistake. It appears from the application that originally the word (do) two was written in the application, but later on it was struck off and corrected by putting twelve (barah) in words. If it were a case of figures, there could be some reason for doubt but when the number was given in words and when the word "two" wad struck off and corrected by the word twelve and when that correction was also signed by learned counsel for appellant, it is not possible for us now to permit him to make an alteration again on a matter of fact. This would seriously prejudice the case of the defendants and we do not feel that there is any justification for this Court to place them in jeopardy by showing indulgence to the appellant. Even if it be assumed that the appellant has committed a mistake, it cannot be deemed that it was committed by some inadvertence. On the other hand, it shows that the appellant wanted to raise an alternative ground by giving wrong facts knowingly and under the circumstances, even if he has committed any mistake, he must suffer for the same. This application for amendment itself weakens the appellants case for amendment on the basis of the notifications. 12. Moreover, we find that the Courts below were not correct in saying that the cause of action for bringing the suit for the entire amount arose for the first time on 14-1-1940. In fact, it appears from the judgments of both the Courts that they were not very sure about the correct position of the date from which the period of limitation should have been computed but they proceeded to decide the case by assuming in the appellants favour that the cause of action arose on 14-1-1940. It would appear from the statement of due dates and dates of payment given above, that the payment of first instalment was due on 9-1-1935 but no payment was made on that date. On the contrary, the first payment was made on 30-5-1935. It is therefore obvious that the default was made on 9-1-1935 and unless the appellant is able to prove waiver, the period against him must be computed from that date. If the period of limitation be thus computed from 9-1-1935, the plaintiff-appellants suit would be barred by a still longer period. It would also appear from the same statement that not a single instalment was paid on the due date. 13. Learned counsel for appellant has urged that although the respondents did not pay any instalment on the due date, it should be presumed in the appellants favour that the five payments made by the respondents on different dates were made towards the particular instalments which were due before those dates and that it should, therefore, be inferred that the appellant was accepting payment towards the particular instalments and that he was waiving his right every time. Learned counsel for the respondents has, on the other hand, argued that the respondents had made no mention that they were making payment towards any particular instalment, that the appellant had done nothing to indicate to the respondents that he was waiving his right to realise the entire amount and that waiver on the appellants part cannot be presumed in this manner. It has been urged that the appellant ought to have taken a specific plea of waiver in his plaint stating the facts on which it was based. In that case the respondents would have met that objection in their own way. 14. The said arguments raise before us questions (1) whether waiver should be pleaded by the plaintiff, (2) whether payment and acceptance of overdue instalment is enough to give rise to a presumption of waiver in the plaintiffs favour and (3) whether the appellant has been able to establish waiver in the present case. 14a. To begin with the first point, it may be pointed out that the plea of waiver involves a mixed question of law and fact because unless certain facts are established, it is not possible to make an inference about waiver. It is, therefore, necessary that the plaintiff who wants to take advantage of such a plea must show in his plaint in a concise form those material facts which, if proved, would go to show that he had waived his right accruing out of the default clause. Order 6, R.2, Civil P.C. requires that every pleading shall contain a statement in a concise form of the material facts on which the party pleading relies for his claim or defence. Order 7, R.6, Civil) P.C. lays down that 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. Reading both these provisions together, there is no doubt left that it is incumbent upon the plaintiff to take a specific plea of waiver if he wants to extend the period of limitation on that basis and that he should also concisely set out the facts on which the plea of waiver is based. Reading both these provisions together, there is no doubt left that it is incumbent upon the plaintiff to take a specific plea of waiver if he wants to extend the period of limitation on that basis and that he should also concisely set out the facts on which the plea of waiver is based. The plea of waiver becomes question of law only when the Court is called upon to determine from the proved facts, circumstances and conduct of the parties whether there has been a waiver on the plaintiffs part. In the case of Florrie Edridge v. Rustomji Danjibhoy, AIR 1933 PC 233 (A), when a plea of waiver was raised before their Lordships of the Privy Council, though it was in a slightly different kind of matter, it was observed by their Lordships, that "In the first place, however, it may be noted that no waiver was pleaded by the respondent and no issue was directed on waiver; but waiver depends on evidence of fact and is not an issue which their Lordships could properly deal with, unless Tildan Smith had been afforded an opportunity of giving such evidence as he thought proper. In the case of Sukh Lal v. Bhoora, AIR 3934 All 1039 (B), it was held, following a previous decision of the Pull Bench of the same Court in the case of Jawahar Lal v. Mathura Prasad, AIR 1934 All 661 (FB) (C), that the triail Court had rightly dismissed a suit in which waiver was neither pleaded nor proved. In the case of Mangli v. Gaya Prasad, AIR 1947 Oudh 235 (D) it was observed as follows: "Clearly where, but for some ground of exemption from the law of limitation, a suit would prima facie be barred by limitation, it is necessary for the plaintiff to show in the plaint such ground of exemption. If no such ground is shown in the plaint, it is liable to be rejected under O.7 R.11. In the absence of specifically pleading the exemption, it would no doubt be sufficient if the ground on which exemption is sought is apparent on the face of the plaint. The failure of the plaintiffs to specifically plead waiver disentitles them to raise the point in appeal. In the absence of specifically pleading the exemption, it would no doubt be sufficient if the ground on which exemption is sought is apparent on the face of the plaint. The failure of the plaintiffs to specifically plead waiver disentitles them to raise the point in appeal. It has been argued by the learned counsel for the defendants that waiver is a question of law and it could be raised at any time. I cannot accept this contention. Waiver is a mixed question of fact and law, and unless facts establishing waiver have been pleaded and proved the legal effect of waiver cannot come into operation or be considered. The learned Judge in the Court below was in error when he characterized the want of plea of waiver as nothing." 15. We do not think it necessary to multiply authorities on this point. It would suffice to refer to only one more authority Which was cited by the appellants learned advocate himself. That case is Raghunathdas Madangopal Bhangade Shop v. Warlu Bapu, AIR 1948 Nag 225 (E). In that case learned Judge referred to a number of authorities and then observed that, "On the aforesaid discussion and authorities, the following points can be taken to be well-established: (a) That the exigibillty clause in an instalment is for the benefit of the creditor and he has a right to waive that benefit even in the absence of a fresh agreement, a fresh consideration or a fresh bilateral arrangement. (b) That a mere inaction on the part of the creditor such as an abstinence to sue or a mere receipt of payment does not amount to a waiver. What is required is some overt act on the part of the creditor, communicated to the debtor, by which a Court of fact can conclude that the creditor has waived the benefit. (c) The payment by the debtor and the acceptance by the creditor specifically made towards the satisfaction of a particular defaulted instalment would amount to a waiver of that default and of the benefit arising out of that default. (d) A waiver is a mixed question of law and fact. It has to be properly pleaded and proved. A choice left to the creditor in the default clause itself is inconsequential. (d) A waiver is a mixed question of law and fact. It has to be properly pleaded and proved. A choice left to the creditor in the default clause itself is inconsequential. (e) In the absence of proof of waiver the creditor cannot fall back on the primary terms of the bond regarding repayment and claim to recover on that basis instalments which axe still within limitation." 16. It would appear from cl. (d) referred above that in that case also, it was held that a plea of waiver must be properly pleaded and proved. An exception to this rule may be made only in those cases where the facts and circumstances are not in dispute between the parties and the Court has to draw only an inference about waiver. In other words, except in those few cases where the waiver becomes a pure question of law, the plea of waiver must be raised in the pleading and proved and if this is not done, it cannot be raised at a later stage. 17. Coming to the next question, learned counsel for appellant has urged that since it 13 proved in the present case that payment of five instalments was accepted by the appellant, it should be inferred that the appellant had exercised his right of waiver. Learned counsel has in this connection referred to the case of Prag v. Rampal Singh, AIR 1938 Oudh 42 (F) and Sheo Narain v. Bageshur, AIR 1941 Oudh 74 (G). It is true that in these two cases, learned Judges had found waiver as proved because there were certain circumstances to show that the creditor had accepted payment towards particular instalments. This does not, however, mean that a mere acceptance of payment amounts to a waiver. It may be pointed out that in a later case AIR 1947 Oudh 235 (D), a learned Judge of the same Court observed as follows: "It is now well established that mere failure to sue or inaction by the creditor is not a waiver of the default. Something else must be established to show that the promisee has waived his rights. Something else must be established to show that the promisee has waived his rights. For instance, his acceptance of an overdue instalment or his communicating to the promisor, for a consideration, that he will not insist upon his right which had already accrued to him on the default which has taken place, or it may be that the promisor himself approaches the promisee or writes to him to stay his hands and not to proceed to demand the full amount to which the promisee agrees." Similarly, in the case of AIR 1934 All 1039 (B) referred above, it was held that a mere omission to sue is not a waiver as contemplated by Art.75, Limitation Act. In a Full Bench case Gokhul Mahton v. Sheoprasad Lal, AIR 1939 Pat 433 (H), it was held that "Mere failure to sue or inaction by the creditor is not a waiver of the default, something else must be established to show that the promisee has waived his rights. For instance his acceptance of an overdue instalment or his communicating to the promisor for a consideration that he will not insist upon his rights which have already accrued to him on the default which has taken place, or, it may be that the promisor himself approaches the promisee or writes to him to stay his hands and not to proceed to demand the full amount and if the promisee agrees to such request, these will ordinarily amount to a waiver. In such cases it is clear that some overt act has been established from which the Court of fact can draw the conclusion that the obligee has waived the default." Similarly in AIR 1948 Nag 225 (E) relied upon by learned counsel for appellant, it was pointed out in cls. (b) and (c) referred above that "A mere inaction on the part of the creditor such as an abstinence to sue or a mere receipt of payment did not amount to a waiver. What is required is some overt act on the part of the creditor, communicated to the debtor." It is clear from these authorities that if payment by the debtor is made specifically towards the satisfaction of a particular defaulted instalment, then such payment and its acceptance by the creditor may amount to a waiver of that default and of the benefit arising out of it. In such a case the creditor should show expressly or by his conduct that he is waiving his right accruing out of the default. In other words, there should be some overt act on his part. In the present case, it was not shown in the plaint that such and such payment was made by the defendant towards a particular instalment whose payment was overdue. The plaintiff did not also express in his statement in the tnal Court that he had accepted particular payment towards a particular instalment. Learned counsel for respondent has urged in this Court that the payment was made towards general account and not towards specific unpaid in-statement. Under the circumstances, we cannot presume that the respondents had made their payments towards particular instalments and that the appellant was waiving his right every time. On the other hand, the plaint was so drafted as to show that seven instalments were received in time and the question of waiver had never arisen. 18. Learned counsel for appellant has urged that he may be permitted to amend the plaint now and to prove that payments of Rs.500/- by the respondents were made towards particular instalments which were overdue and that the appellant had waived his right on each of the five defaults. Learned counsel for respondents has seriously contested that this amendment should not be allowed at this stage. In support of his contention he lias referred to - Purshottam Hari v. Vasant Shankar Choudhari, AIR 1943 Bom 259(I). In that case it was observed that "If a party waits till very nearly the full period of sixty years from the date when the cause of action accrued for filing a suit, I do not propose to encourage such conduct by giving leave to amend. If the suit is not in form, it will be dismissed, however technical the point may be." 19. That was a case of mortgage, but the principle for allowing amendment is the same. If the appellant had come with clean hands and if he had asked for an amendment of the plaint) even in the first appeal, there would have been something to consider in his favour. But it is now apparent that when he drafted his plaint, he completely concealed the fact as to when the previous instalments were paid. If the appellant had come with clean hands and if he had asked for an amendment of the plaint) even in the first appeal, there would have been something to consider in his favour. But it is now apparent that when he drafted his plaint, he completely concealed the fact as to when the previous instalments were paid. On the other hand, he tried to show as if seven instalments were received in time and the limitation had begun to run only from default in the payment of the eighth instalment. Both the Courts have found that he has not been able to prove if the sixth and seventh instalments were ever paid. This clearly shows that he was trying to circumvent the question of limitation by suppressing certain facts and also by giving out wrong facts. Again, when the application for amendment was presented on 27-8-1952, he tried to give wrong facts as shown above. Then he does not want amendment only on one particular point. He has not presented any application earlier for amendment on the question of waiver. He wanted amendment only on the basis of the notifications referred above. Under the circumstances, we do not think it proper that the case should be remanded so as to give to the appellant a chance to bring in a number of new questions of fact. That would seriously prejudice the respondents in the trial of the case. This prayer is therefore disallowed. 20. Learned counsel has in the end urged that this case is covered by Art.74, Limitation Act and if that is applicable, the present suit would be within time. In order to decide this point, it would be proper to reproduce both Arts.74 and 75, Indian Limitation Act. They are as follows: "74. On a promissory note or bond payable by instalments. Three years The expiration of the first term of payment as to the part then payable; and for the other parts the expiration of the respective terms of payment." "75. On a promissory note or bond payable by instalments, which provides that if default be made in payment of one or more instalments, the whole shall be due. Three years. When the default is made, unless where the payee or obligee waives the benefit of the provision, and then when fresh default is made in respect of which there is no such waiver." 21. Three years. When the default is made, unless where the payee or obligee waives the benefit of the provision, and then when fresh default is made in respect of which there is no such waiver." 21. It would appear from comparison of the two articles that Art.74 does not refer to any default clause, while Art.75 lays down that if the promissory note or bond payable by instalments provides that if default be made in payment of one or more instalments, the whole shall be due, then three years would be computed from the date when the default is made unless the payee or obligee waives the benefit of the provision. If the payee or obligee waives the benefit accruing out of the default clause, then in that case the period would run from the date when fresh default is made. In the case of AIR 1939 Pat 433 (H), referred above, it was observed as follows: "It must be kept in view that there is a well-defined distinction between Arts.74 and 75, Limitation Act. Art.74 applies to an instalment bond which does not contain any default clause and therefore in such cases the plaintiff is entitled, by the very terms of his bond, to sue only for such instalment as remains unpaid. No question of waiver of default can ever arise in such a case. But where the document provides that in the case of a default (which may be due to non-payment of one instalment or more than one instalment as provided in the bond) the obligee has the right to sue for the whole of the sum then remaining due, it is obvious that the promisor has a right eo instanti to pay the full amount and the obligee a corresponding right to receive and recover it. Art.75 provides in Col. 3 how the starting point of limitation should be calculated in such a case; the starting point for limitation is in the first instance the date of the default but this, starting point can be carried forward only if the default is waived." 22. It would suffice to point out to cl.(e) in the case of AIR 1948 Nag 225(E), referred above relied upon by learned counsel for the appellant himself. It would suffice to point out to cl.(e) in the case of AIR 1948 Nag 225(E), referred above relied upon by learned counsel for the appellant himself. Even in that case it was held that in the absence of proof of waiver, the creditor cannot fall back on the primary terms of the bond regarding the payment and claim to recover on that basis instalments which are still within limitation. 23. In the present case, the plaintiff has not brought his suit for particular instalments but he has brought a suit for the entire amount on the basis of the default clause. Art. 74, therefore is obviously not available to him in any case and his contention is also fit to be dismissed. 24. There is thus no good ground for allowing this appeal and it is dismissed with costs. Appeal dismissed.