Judgment. This is a defendant’s Second Appeal arising out of a suit for recovery of a sum of Rs. 600 alleged to be due from him to the Commercial Funds, Ltd., Kancheepuram. The defendant was a subscriber to a chit conducted by the Funds. He took in auction a chit for Rs. 5,000 payable in 100 monthly instalments of Rs. 50 each . The first instalment was due on March 14, 1947, and the last was payable on May 14, 1951. Admittedly, the defendant paid all the instalments due up to September 14, 1949; but he failed to pay the subsequent instalments. The Funds were directed by this Court in O.P. No. 309 of 1949 to be wound up. The Official Receiver who was appointed as the Official Liquidator for realizing the outstandings of the Funds, sold the outstandings due to the Funds, to the plaintiff, the respondent in the present Second Appeal, by means of a sale deed dated May 17, 1954. The plaintiff, as such assignee, claimed to be entitled to realize the amount claimed in the suit. According to him, although he was entitled to a larger amount, he confined his claim to the sum of Rs. 600 being the instalments payable for the period from 14th December 1950 to 14th May, 1951. The suit was actually instituted on 1st July, 1955. The plaintiff pleaded that the suit was in time by virtue of Madras Ordinance V of 1953 and Madras Acts V of 1954 and I of 1955. On appeal by the plaintiff, the lower appellate Court took a different view on the question of limitation. In effect, it considered that waiver on the part of the plaintiff would, in such circumstances, be presumed, and that the suit would, therefore, be in time, under Article 75 of the Limitation Act. In support of this view the lower appellate Court relied on the decision of Mack, J., in Ayyadurai Mudaliar v. Ibramsa Rowther1, allowed the appeal and decreed the suit. The aggrieved defendant has, therefore, come up to this Court in Second Appeal. The main point urged by Sri K.S. Champakesa Ayyangar, the learned counsel for the appellant, is that the lower appellate Court was in error in supposing that waiver for purposes of the third column in Article 75 could be presumed in favour of the plaintiff. The aggrieved defendant has, therefore, come up to this Court in Second Appeal. The main point urged by Sri K.S. Champakesa Ayyangar, the learned counsel for the appellant, is that the lower appellate Court was in error in supposing that waiver for purposes of the third column in Article 75 could be presumed in favour of the plaintiff. His contention is that the plaintiff, if he wanted to rely on it, must clearly plead waiver for purposes of the third column of that Article and prove the same just like any other fact by cogent evidence. His contention further is that the mere fact, that waiver might be to the benefit of the plaintiff, is not sufficient justification for the view that waiver can be presumed in favour of the plaintiff and that the defendant should prove that there is no waiver. I think the learned counsel is right in his contention. Article 75 of the Limitation Act governs a suit, inter alia, on a bond payable by instalments, which provides, that, if default be made in payment of one or more instalments, the whole shall be due. The period prescribed for such a suit is three years. The starting point as provided in column 3 is stated thus: “When the default is made, unless where the payee or the obligee waives the benefit of the provision and then when a fresh default is made in respect of which there is no such waiver.” It is clear from this that the period of limitation commences the moment there is a default made in payment of the instalment due. A suit beyond three years from the date of such default would prima facie be out of time. It would be within time only if the plaintiff has waived the benefit of the default provision. Whether there is a waiver or not is a question of fact. Obviously it will have to be pleaded and established, if it is to be relied upon as a ground for the exemption from the bar of limitation provided by Article 75. It would be within time only if the plaintiff has waived the benefit of the default provision. Whether there is a waiver or not is a question of fact. Obviously it will have to be pleaded and established, if it is to be relied upon as a ground for the exemption from the bar of limitation provided by Article 75. The mere fact that waiver will be to the advantage of the plaintiff inasmuch as that will save him from the bar of limitation, will not ipso facto be a proper basis for the view that he should be assumed to have waived the benefit and that on that basis the defendant, who pleads to the contrary, should be called upon to establish the negative, namely, that the plaintiff has not waived. Sri T.V. Balakrishnan, the learned counsel for the respondent, however, relies on the decision in Ayyadurai Mudaliar v. Ibramsa Rowther1, and contends that only in cases where the plaintiff wanted to elect to enforce the default clause in the bond, Article 75 would be attracted. Mack,J., held on the facts in that case that in a suit on an instalment bond with a default clause Article 75 will only operate if the plaintiff elects to enforce the default clause which it is always open to him to waive or forego; and that in such cases his right to recover the instalments as on an ordinary instalment bond within three years prescribed by Article 74 of the Limitation Act remains unaffected. In that case the stake-holder kept an account of the moneys owed by the subscribers; it was found in the account that he had credited the commission due to the defendant on the basis that he had committed no default. That clearly showed that the case for the plaintiff in that case was that the instalments had been paid and there was no default. In view of the fact that actually the commission was credited to the defendant on the basis that there was no default, it was apparent there was a waiver on the part of the plaintiff. On that basis the actual decision of Mack, J., in that case, if I may say so with due respect, was correct. In view of the fact that actually the commission was credited to the defendant on the basis that there was no default, it was apparent there was a waiver on the part of the plaintiff. On that basis the actual decision of Mack, J., in that case, if I may say so with due respect, was correct. But there are no doubt observations in his judgment which possibly lend some support to the view that waiver may be assumed in favour of the plaintiff as it would be to his benefit in such a case as this. But with great respect to the learned Judge, I can find no justification for that view in the language of Article 75, particularly that of column 3 thereof. On the other hand, my attention has been invited by the learned counsel for the appellant, to the decision in Gopala Menon v. Abdul Azeez1, in which Madhavan Nair, J., was evidently of the view that waiver should be proved by the plaintiff by proper evidence. It is true that the learned Judge has not laid down such a proposition in so many terms but the approach of the learned Judge to the question was obviously on that basis. On the language of Article 75, I am clearly of the view that if the plaintiff wants to get the benefit of waiver in order to save time, he must specifically plead and establish the same by evidence. I can see no support in the language of that Article for the assumption that waiver will be presumed in favour of the plaintiff and that it is for the defendant to plead the negative and prove the same for purposes of Column 3 of Article 75. On that view, there is no difficulty in holding in this case that the plaintiff has not established waiver. There is not even a plea of waiver in the plaint; much less has there been any evidence directed on the point. It follows, therefore that, the suit was out of time and was rightly dismissed by the trial Court. Sri T.V. Balakrishnan urges that the suit should be held to be in time on the ground that the defendant had acknowledged his liability to the extent of Rs. 600 in the written statement filed by him in O.S. No. 186 of 1952. Sri T.V. Balakrishnan urges that the suit should be held to be in time on the ground that the defendant had acknowledged his liability to the extent of Rs. 600 in the written statement filed by him in O.S. No. 186 of 1952. But this ground of exemption from the bar of limitation was not specifically taken in the plaint. It is true that in the plaint it was pleaded that the suit was within time but that was on a different ground namely that Ordinance V of 1953 and the subsequent Acts already referred to saved the bar. Order 7, rule 6 of the Code of Civil Procedure requires that 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. This rule appears to be mandatory. It is not sufficient that a plea of exemption is made on a certain ground in order to permit the plaintiff to support the exemption on another ground not pleaded. So much appears to have been held by Cornish, J., in Palani Chetty v. Sevugan Chetty2, and by Walsh, J., in Mahadeva Sastrigal v. Marulai Reddiar3. These two decisions have been followed by Venkataramana Rao, J., in Ramaswami v. Anaiya Padayachi4. In view of these decisions Sri Balakrishnan made an oral application to this Court for leave to amend the plaint. Obviously this request is too belated and cannot be allowed. The result is the Second Appeal is allowed. The Judgment and Decree of the lower appellate Court are set aside and the suit will stand dismissed. The defendant will be entitled to his costs throughout. R.M. ----- Appeal allowed.