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2014 DIGILAW 900 (PAT)

Nagwali Singh v. State of Bihar

2014-08-21

MUNGESHWAR SAHOO

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MUNGESHWAR SAHOO, J.:–The plaintiff has filed this First Appeal against the Judgment and Decree dt.29.096.1988 passed by the learned subordinate Judge Ist, Jehabanad in Money Suit No.6 of 1986 dismissing the plaintiff money suit for realization of Rs.1,13,061.40/-. 2. The plaintiff filed the aforesaid suit claiming Rs.1,13,061.40/- alleging that he entered into agreement with the defendant on 17.03.1979 for repairing the barrage to Sohajana sarpanah for filling of earth in respect of scheme No.49 of 78-79 which was food for work schemes. The plaintiff was to be paid wheat and its transporting charge. The plaintiff started working since 19.03.1979 and received 35 quintals of wheat and its cost for transportation Rs.122.40/- as advance. Thereafter, the plaintiff completed the work on 20.04.1979. The same was measured by Zonal Supervisor of Makhdumpur Block and submitted the report which was finally checked up by defendant No.4 who found the work done by the plaintiff satisfactory. After adjusting the advance, only 301.32 quintals of wheat and Rs.1054.72 as transporting charge remained due to be paid by the defendant. In spite of repeated request, the defendant did not pay the Bill, therefore, the plaintiff filed C.W.J.C. No.1986 of 1984 before the High Court which was withdrawn. Thereafter, petition was filed by the plaintiff before Collector who referred the matter to D.D.C. but D.D.C. refused to make payment on 24.05.1985, then the plaintiff again filed C.W.J.C. No.6069 of 1985 but the High Court permitted to withdraw the writ application directing the plaintiff to file suit, so after serving notice under Section 80 CPC, the suit was filed. 3. The defendant-State of Bihar filed written statement denying the service of notice under Section 80 C.P.C. The agreement entered into between plaintiff with the B.D.O. is not legal because food for work scheme did not allow any contractor to perform the work rather it was required to be executed through the Government agency. The work was not done according to the terms and conditions of the agreement and work order. The report was not submitted in prescribed form and the form was not even completed. The same was forged and bogus. Only one day measurement was done, i.e., on 14.06.1979 after completion of the work although, the requirement was that it was to be measured every week. In fact there was no measurement and report was submitted in collusion. The report was not submitted in prescribed form and the form was not even completed. The same was forged and bogus. Only one day measurement was done, i.e., on 14.06.1979 after completion of the work although, the requirement was that it was to be measured every week. In fact there was no measurement and report was submitted in collusion. No checking was ever done as the pits could not be measured being washed away by rain and flood because the plaintiff made willful delay. 4. On the basis of the aforesaid pleading of the parties, the following issues were framed :– (i) Is the suit as framed maintainable? (ii) Has the plaintiff got any cause of action or right to sue? (iii) Is the suit barred by law of limitation? (iv) Is the suit barred by the provisions of specific Relief Act? (v) Is the suit bad for Mis-joinder and Non-joinder of parties? (vi) Are the notices u/s 80 C.P.C. legally and properly served on the defendants? (vii) Is the income certificate granted by Circle Office in the matter of payment of Court fee correct or whether the plaintiff is required to pay the required Court fee? (viii) Is the agreement dated 19.03.1979 in question legal and valid? (ix) Has the plaintiff completed the work in questions according to the terms and conditions of the agreement and work order? (x) Is the plaintiff entitled for any relief claimed for? If so, to what extent? 5. The Court below came to the conclusion that the agreement was legal and the plaintiff worked according to terms and conditions of the agreement. However, while deciding issue No.3, i.e., limitation, the Court below came to the conclusion that the suit is barred by law of limitation in view of Article 18 of the Limitation Act and accordingly dismissed the plaintiff’s suit. 6. The only point raised before this Court by the learned counsel for the appellant is with regard to limitation. However, while deciding issue No.3, i.e., limitation, the Court below came to the conclusion that the suit is barred by law of limitation in view of Article 18 of the Limitation Act and accordingly dismissed the plaintiff’s suit. 6. The only point raised before this Court by the learned counsel for the appellant is with regard to limitation. The learned counsel submitted that after completion of work, the plaintiff was always approaching the defendants and requesting them to pay the amount but they did not pay and assured only, therefore, writ application was filed before the High Court and the High Court directed the plaintiff to file the suit, therefore, in view of this fact the Court below should have condoned the delay, if any, in view of the provision under Section 14 of the Limitation Act. Moreover, when the defendants lastly refused to pay the amount in the year 1985, i.e., on 24.05.1985 by D.D.C., the suit has been filed in the year 1986 as such it is within three years. In support of her contention, the learned counsel relied upon the decision of Bombay High Court, i.e., A.I.R. 2003 Bombay 11 Pratap Singh Ganpathrao Kadam Vs. Maruti Raghunath Godkar. The learned counsel further submitted that it is settled law that while considering the question of limitation, the Court should approach liberally. 7. On the other hand, the learned counsel for the respondent submitted that the work was completed according to the plaintiff on 20.04.1979, therefore, according to Article 18 of the Limitation Act, the suit should have been filed within three years from completion of the work. Since, from the very beginning, the defendants are denying the payment, there is no question of giving assurance to the plaintiff arises. According to the learned counsel even the writ application was filed before the High court for the firs time in the year 1984, i.e., much after the expiry of limitation. Therefore, the Court below has rightly held that the suit is barred by law of limitation. 8. In view of the above submission of the parties and in view of the fact that the only question raised before this Court is regarding limitation, the point arises for consideration in this First Appeal is as to whether the plaintiff’s suit is barred by law of limitation or not. 9. 8. In view of the above submission of the parties and in view of the fact that the only question raised before this Court is regarding limitation, the point arises for consideration in this First Appeal is as to whether the plaintiff’s suit is barred by law of limitation or not. 9. It is admitted fact that the plaintiff completed the work within the period fixed in the agreement which is 20.04.1979. Now, therefore, in view of Article 18 of the Limitation Act, the suit should have been filed by the plaintiff within three years from the date of completion of work. Article 18 of the Limitation Act reads as follows :— Description of suit Period of Time from which Limitation period begins to run For the price of Three When the work work done by the years. is done plaintiff for the de- fendant at his request, where no time has been fixed for payment 10. In view of the above provision, the limitation for filing the money suit in the present case expired on 20.04.1982. 11. Section 18 of the Limitation Act reads as follows :— “18. Effect of acknowledgement in writing :—(1) Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgement of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he drives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgement was so signed. (2) Where the writing containing the acknowledgement is undated, oral evidence may be given of the time, when it was signed, but subject to the provisions of the Indian Evidence Act, 1872 (1 of1872), oral evidence of its contents shall not be received. Explanation………… 12. In view of this provision, if there is any acknowledgement for repayment by the defendant within the limitation period, then the limitation will start from the said date. In the present case at our hand it is not the case of the plaintiff that the defendant ever acknowledged to pay the due amount to the plaintiff. The only case pleaded by the plaintiff is that the defendants always assured to pay but no such acknowledgment was produced. 13. In the present case at our hand it is not the case of the plaintiff that the defendant ever acknowledged to pay the due amount to the plaintiff. The only case pleaded by the plaintiff is that the defendants always assured to pay but no such acknowledgment was produced. 13. So far A.I.R. 2003 Bombay page 11 is concerned, the Bombay High Court relying on the decision of Hon’ble Supreme Court in the case of Rameshwar Lal Vs. Municipal Council Town 1996 (6) SCC 100 held that ‘Section 14 would also be attracted to civil proceedings, including proceedings in the exercise of extraordinary jurisdiction. Even otherwise, to attract Section 14, the proceeding must be a civil proceeding and must be either in the Court of first instance, appeal or revision. There is no reason why proceedings in the first instance, invoking the extraordinary jurisdiction of the Court could not be a proceeding in the first instance. They are admitted civil proceeding.’ In view of the above settled proposition laid down by the Hon’ble Supreme Court that the proceedings before the High Court under Article 226 of the Constitution of India can be considered to be a civil proceeding in the first instance and benefit under Section 14 of the Limitation Act can be given but in the present case, the writ application has been filed in the year 1984, ie., after 3 years. According to Section 14, the time of proceeding before the High Court should be excluded. Since in this case the writ application have been filed after the suit became barred, there is no question of exclusion of time arises. In view of the above fact, in the present case benefit under Section 14 of the Limitation Act cannot be given to the plaintiff appellant. 14. So far the submission of the learned counsel for the appellant that while considering the limitation application, the Court should give liberal approach is concerned, admittedly no limitation application under section 14 of the Limitation Act was filed before the Court. Further, I have already held above that plaintiff is not entitled to any benefit under Section 14 of the Limitation Act in this case as he approached High Court much after expiry of limitation. Further, I have already held above that plaintiff is not entitled to any benefit under Section 14 of the Limitation Act in this case as he approached High Court much after expiry of limitation. Section 3 of the Limitation Act provides that every suit instituted after the prescribed period shall be dismissed although limitation has not been set up as a defence. So far the submission of the learned counsel for the appellant that the High Court directed the plaintiff to file suit is concerned, in my opinion, the observation or direction made by the High Court will always be subject to the law of limitation and merely because while withdrawing the writ application, any observation was made or liberty was granted, the limitation will not be counted from that date. In other words, no fresh cause of action will arise, particularly when in the present case long ago, the limitation expired. 15. In view of the above discussion, I find that the plaintiff’s suit is barred by law of limitation, therefore, the Court below has rightly found that the suit is barred. Accordingly, the finding of the trial Court is hereby confirmed. The point formulated is answered against the appellant. 16. In the result, this First Appeal is dismissed. In the facts and circumstances of the case, there shall be no order as to cost. ?