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2013 DIGILAW 696 (MP)

Jadon and Company v. Vikas Goudha

2013-06-21

N.K.Gupta

body2013
ORDER 1. The appellant has filed the Civil Suit No.376-B/2006 for recovery of his sale price relating to supply of printed material to the respondent in previous years, but the same was dismissed being barred by limitation vide judgment dated 17.9.2008 passed by the Third Additional Judge to the First Civil Judge Class-I, Bhopal. The Civil Appeal No.422-B/2008 filed by the appellant was also dismissed vide judgment and decree dated 24.12.2009. Being aggrieved with the aforesaid decree and judgments, the appellant has preferred the present second appeal. 2. The plaintiff’s case, in short, was that a supply of printing material was given to the respondent on credit in the year 2001-02 and 2002-03. The entire material of Rs.2,56,678/- was supplied and the defendant had paid a sum of Rs.1,94,824/-, and therefore a sum of Rs.61,854/- was due towards the defendant. A notice was given to the defendant, but no payment was made, and therefore the civil suit was instituted for recovery of the sum due towards the defendant. 3. The defendant denied in his written statement that no sum was due. According to him, he had paid the entire sum towards the bills given to him. 4. The learned third Civil Judge Class-II, Bhopal after framing the issues recorded the evidence of the parties and decided the suit on 17.9.2008. It was dismissed being barred by limitation. The civil appeal filed by the appellant was also dismissed. 5. After considering the submission made by the learned counsel for the appellant and looking to the facts and circumstances of the case, it is apparent that the appellant could not prove that the entire transaction was a sequence of one transaction. It is clear from the record that the respondent purchased the printed material on credit from time to time and thereafter he paid money from time to time. The last transaction of such purchase was done on 16.1.2002, and therefore the limitation of three years was available to the appellant from 16.1.2002, whereas he has filed the suit on 4.12.2006, which was apparently barred by limitation. 6. The last transaction of such purchase was done on 16.1.2002, and therefore the limitation of three years was available to the appellant from 16.1.2002, whereas he has filed the suit on 4.12.2006, which was apparently barred by limitation. 6. In the present appeal, the learned counsel for the appellant has submitted that the respondent has done the last part payment on 5.12.2003 by a sum of Rs.1,000/-, and therefore according to the provisions of section 19 of the Limitation Act, 1963, a fresh limitation was started from 5.12.2003 and the suit filed on 4.12.2006 was within the limitation. If the judgment passed by the learned trial Court is perused, then it would be apparent that no such plea was taken before the trial Court. Similarly, no such plea under section 19 of the Limitation Act was taken before the first appellate Court. In this connection, one notice Ex.P-5 was also exhibited. In that notice, no pleading has been made about the limitation that a part payment of Rs.1,000/- was done by the respondent on 5.12.2003. Similarly, in framing of plaint, no such pleading has been done relating to the limitation. It is not admitted by the defendant/respondent that part payment of Rs.1,000/- was made by him on 5.12.2003. The appellant is claiming that part payment on the basis of his ledger. It is nowhere proved that the ledger was maintained by the appellant in a proper manner and the entry dated 5.12.2003 was an actual entry and it was not a fake entry. Under such circumstances, the appellant neither pleaded nor proved that a sum of Rs.1,000/- was deposited by the respondent on 5.12.2003, and therefore he could get a fresh limitation as per the provisions of section 19 of the Limitation Act. 7. Under these circumstances, the appellant could not prove that a part payment of Rs.1,000/- was received on 5.12.2003, and therefore the plea raised under section 19 of the Limitation Act cannot be accepted in the present case. The evidence should be looked into on the basis of the pleading, whereas no such pleading has been done by him before the trial Court. No plea of fact can be raised in the second appeal if the same was not raised either before the trial Court or appellate Court. The evidence should be looked into on the basis of the pleading, whereas no such pleading has been done by him before the trial Court. No plea of fact can be raised in the second appeal if the same was not raised either before the trial Court or appellate Court. Under such circumstances, it cannot be accepted at this stage that the respondent deposited a sum of Rs.1,000/- on 5.12.2003. If that plea is separated, then apparently the last transaction took place on 16.1.2002 and the plaintiff did not file suit within three years from that date and apparently it was barred by limitation. It is apparent that the limitation does not begin from the date of notice as claimed by the appellant in the plaint. Under such circumstances, the judgments and decrees passed by both the courts below appear to be correct. No illegality or perversity has been done by the trial Court or the appellate Court, and therefore no substantial question of law is involved in the present second appeal which is to be decided. Therefore, the second appeal filed by the appellant cannot be accepted. Consequently, it is hereby dismissed at motion stage. 8. Copy of this order and appellate decree be sent to both the Courts below along with their records.