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2000 DIGILAW 377 (MAD)

Pichai Sendapiriyar v. Ramaswamy Vanniar

2000-03-31

D.MURUGESAN

body2000
JUDGMENT: The defendant in O.S.No.51 of 1985 on the file of the Subordinate Judge, Thanjavur is the appellant. It is the case of the plaintiff that the defendant borrowed a sum of Rs.20,000 from the plaintiff and executed a promissory note on 13.5.1982. The said promissory note was marked as Ex.A-1 in the suit. Since, the defendant did not repay the said amount whenever the plaintiff demanded, the plaintiff caused a lawyer’s notice dated 9.7.1984 Ex.A-2, calling upon the defendant to pay back the amount with interest. However, the defendant refused to receive the said notice and therefore, the plaintiff was compelled to file the suit for recovery of a sum of Rs.27,000. The suit was resisted by the defendant on the ground that the plaintiff himself signed the promissory note as if the defendant had signed, and therefore, the promissory note is not genuine and consequently there was no obligation on the part of the defendant to pay back the money as claimed by the plaintiff in the suit. 2. The trial Court framed the issue as to whether the promissory note is genuine or not and whether the plaintiff is entitled to the said sum or not? After discussing the evidence adduced on behalf of both sides, the trial Court came to the conclusion that the promissory note was genuine and was in fact, executed by the defendant after receiving a sum of Rs.20,000 from the plaintiff and consequently, the defendant is liable to repay the said sum with interest. 3. Challenging the said decree, the defendant filed A.S.No.41 of 1987 on the file of District Judge, West Thanjavur. Even before the appellate Court, the same issue was framed as to whether the promissory note dated 13.5.1982 was executed by the defendant in favour of the plaintiff and whether it was supported by the consideration to the extent of Rs.20,000 or not. In addition to the said issue, the defendant also raised an additional point as to whether the suit was barred by limitation. The lower appellate Court accepting the evidence of P.W.1 to P.W.3 ultimately found that the defendant had, in fact, executed the promissory note under Ex.A-1 in favour of the plaintiff in the presence of P.W.2 and P.W.3 after receiving a sum of Rs.20,000 and, therefore, the defendant is liable to repay the same. The lower appellate Court accepting the evidence of P.W.1 to P.W.3 ultimately found that the defendant had, in fact, executed the promissory note under Ex.A-1 in favour of the plaintiff in the presence of P.W.2 and P.W.3 after receiving a sum of Rs.20,000 and, therefore, the defendant is liable to repay the same. In so far as the ground raised by the defendant in the appeal that the suit was barred by limitation, the appellate Court found against the defendant. Accordingly, the lower appellate Court confirmed the judgment and decree of the trial Court. 4. The learned counsel for the appellant in the second appeal argued the very same points urged before the lower appellate Court. In so far as the submission of the learned counsel for the appellant that the defendant had not executed the promissory note and the plaintiff himself has signed in the promissory note as if the defendant had signed, I am unable to agree with the said submission for the simple reason both the trial Court as well as the lower appellate Court on the basis of the evidence of P.W.1, P.W.2 and P.W.3 had categorically come to the conclusion that the defendant had, in fact, executed the promissory note in favour of the plaintiff namely P.W.1 in the presence of P.W.2 and P.W.3 and, therefore, the findings arrived by both the Courts below cannot be interfered with. 5. The second submission of the learned counsel for the appellant is that, the promissory note was dated 13.5.1982 and the suit was filed on 17.4.1985. However, the promissory note was not enclosed along with the plaint at the time when the same was presented on 17.4.1985. Thereafter, the plaint was returned on 17.4.1985 for compliance and the same was re-presented by the plaintiff on 15.6.1985. Even at the time of re-presentation, the plaintiff failed to enclose the promissory note namely Ex.A-1. Therefore, the Court once again returned the plaint on 18.6.1985 and the same was represented by the plaintiff on 8.7.1985 along with the promissory note. Thereafter, the plaint was returned on 17.4.1985 for compliance and the same was re-presented by the plaintiff on 15.6.1985. Even at the time of re-presentation, the plaintiff failed to enclose the promissory note namely Ex.A-1. Therefore, the Court once again returned the plaint on 18.6.1985 and the same was represented by the plaintiff on 8.7.1985 along with the promissory note. Therefore according to the learned counsel for the appellant even though the suit was filed within the period of three years from the date of promissory note, namely on 17.4.1985, in the absence of the promissory note being filed along with the plaint on 17.4.1985, it cannot be construed as a proper presentation within the period prescribed for filing suit for recovery of the amount, namely three years from the date of the pronote namely 13.5.1982. In support of the above submission, the learned counsel for the appellant drew my attention to the provisions contained in O.7, Rule 14 of Code of Civil Procedure and submitted that the said provision is mandatory and therefore merely because the plaintiff was given time to produce the promissory note by the Court it will not entitle the plaintiff for any decree especially when there was no proper presentation within a period of three years. 6. In adverting to the above submissions, the learned counsel for the respondent in the second appeal submitted that in as-much-as O.7, Rule 11 provides for the circumstance in which a plaint could be rejected and the circumstances enumerated in the said Rule will not come within the purview of the provision contained in O.7, Rule 14, the trial Court has every right to return the plaint for compliance and therefore when the plaint is presented within a period of three years and the production of document on any subsequent date as permitted by the Court will not be hit by the limitation and therefore the learned counsel for the respondent sought to justify the finding of the lower appellate Court. 7. In order to appreciate the rival contentions of the counsel for the appellant and the respondent, it would be relevant to refer to the certain provisions in the Code of Civil Procedure as well as Sec.3 of the Limitation Act. 7. In order to appreciate the rival contentions of the counsel for the appellant and the respondent, it would be relevant to refer to the certain provisions in the Code of Civil Procedure as well as Sec.3 of the Limitation Act. O.7, Rule 11 reads as under: "The plaint shall be rejected in the following cases: (a) Where it does not disclose a cause of action; (b) Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so; (d) Where the suit appears from the statement in the plaint to be barred by any law: Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff." O.7, Rule 12 reads as under: "Where a plaint is rejected, the Judge shall record an order to that effect with the reasons for such order." O.7, Rule 13 reads as under: "The rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action." O.7, Rule 14 reads as under: "(1) Where a plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint. (2) Where he relies on any of the documents (Whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the plaint." O.7, Rule 18 reads as under: "(1) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint, and which is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit. (2) Nothing in this rule applies to documents produced for cross-examination of the defendant’s witnesses, or in answer to any case set up by the defendant or handed to a witness merely to refresh his memory." 8. A reading of O.7, Rule 14 coupled with O.7, Rule 18, it would be clear that when a plaint is presented, the plaintiff shall produce the documents in his possession or power on which the suit is based along with plaint. On a perusal of Rule 18, it is clear that a document which has not been annexed to the plaint at the time of the presentation of the same can be produced with the leave of the Court at the hearing of the suit. Therefore, production of document along with the plaint as contemplated under O.7, Rule 14 is only to regulate the procedure. This can be further fortified by the fact that O.7, Rule 11 specifically enumerates the circumstances in which the Court can reject the plaint. Non-production of document along with the plaint at the time of presentation is not one of the circumstances where the Court can reject the plaint. Therefore, the submission of the learned counsel for the appellant that provision contained in O.7, Rule 14 enabling the plaintiff to produce the document upon which the suit is based and these documents are said to be in the plaintiff’s possession or power along with the plaint is mandatory, cannot be accepted. Sec.3 of the Limitation Act reads as follows: "A suit or appeal or application made after the prescribed period shall be dismissed although limitation has not been set up as a defence". 9. Sec.3 of the Limitation Act reads as follows: "A suit or appeal or application made after the prescribed period shall be dismissed although limitation has not been set up as a defence". 9. On a combined reading of O.7, Rule 14 and Sec.3 of the Limitation Act, I have no other option but to hold that the date of presentation of the plaint shall be construed as the date of the institution of the suit. In the given case, the promissory note is dated 13.5.1982. Admittedly the suit was filed on 17.4.1985 within a period of three years when the plaint was presented. Further, as per O.7, Rule 18, the Court can entertain any document to be relied upon at the time of hearing as evidence with its permission. In this case even though the promissory note was not annexed along with the plaint on 17.4.1985, the same was filed on 8.7.1985 only on the permission of the Court when the Court returned the plaint for proper presentation including the production of the promissory note along with the plaint and the same has been marked as Ex.A-1. The fact that the Court itself has granted time for the plaintiff to produce the documents would be well within the provisions of O.7, Rule 18 and therefore Ex.A-1 deemed to have been filed with the permission of the Court. In my considered view for the purpose of limitation, the date on which the plaint was presented alone has to be taken into consideration and not the date on which the plaint was re-presented after compliance pointed out by the Court while returning the plaint. In that view, the plaint presented on 17.4.1985 in the suit on the basis of the promissory note dated 13.5.1982 is well within the period of three years and, therefore, it cannot be said that the suit is barred by limitation as per Sec.3 of the Limitation Act. In that view, I am not able to agree with the submissions made by the learned counsel for the appellant that the relevant date for the purpose of limitation shall be 8.7.1985 when the plaint was re-presented with compliance and not on 17.4.1985 when the plaint was presented initially. Accordingly, there are no merits in the submissions of the learned counsel for the appellant. Accordingly, there are no merits in the submissions of the learned counsel for the appellant. I do not find any error in the judgment of the lower appellate Court on the question of limitation and the findings of both the Courts below that the defendant had executed the promissory note after borrowing a sum of Rs.20,000. In view of the above, the plaintiff is entitled to the amount claimed in the plaint with 12% interest from the date of the plaint till now. 10. In the result, the judgments and decrees of both the Court below are confirmed and the second appeal is dismissed with costs.