MAGUNDAPPA NEELAPPA KORI Vs. SC

JUDGEMENT

(1.) THE appellant instituted Long Cause Civil Suit No. 133 of 1958 in the Court of the Joint Civil Judge, Junior Division, Dharwar against the respondent for recovery of Rs. 336 alleging that the latter whom he had engaged as his Pleader to Civil Appeal No. 76 of 1949 in the Court of the District Judge at Dharwar had failed to conduct the same and declined to return the amounts received by him. The defendant respondent resisted the suit on various grounds. The suit was tried on preliminary issues pertaining to the plea of limitation set up by the defendant and was dismissed by the learned Civil Judge as being barred by time under Art. 90 of the Indian Limitation Act. The plaintiff then filed Civil Appeal No. 357 of 1959 in the Court of the District Judge without any success. In the present appeal Shri H.F.M. Reddi the learned Advocate appearing for the appellant submitted that the trial. Court had erred in disposing of the suit without recording evidence on all the points arising in this case that the Courts below had erred in applying Art, 90 or Art. 97 of the Limitation Act and that the proper article applicable to the suit was Art. 120 of the Limitation Act. He also submitted that the Courts had erred in holding that there was no valid acknowledgment of the claim so as to extend the period of limitation.

(2.) THE facts material to the appeal are as follows : The appellant instituted Long Cause Suit No. 328 of 1947 against one Chenbasappa Shivappa Navalur in the Court of the Civil Judge at Dharwar and first engaged Mr. Bongalae a pleader practising at Hubli on his behalf. Subsequently, on the advice of one Narayanappa Kulkarni, the plaintiff engaged the defendant who was then practising as a pleader in Dharwar. The plaintiff's suit was decreed in the trial Court. In the appeal preferred by the defendant in that suit he again engaged the present defendant as his pleader. The plaintiff alleged that he had paid Rs. 200 as fees for the suit, Rs. 101 as in a in and Rs. 110 towards fees in the appeal. He further paid Rs. 25 to the defendant by a cheque dated 21 -8 -1948 drawn on the Canara Bank, Hubli and a sum of Rs. 100 towards the balance of the fees on 4 -1 -1951. The defendant declined to pass a receipt for the last payment or to make a note of the same below the earlier receipt. In the meanwhile the defendant shifted to Bombay to practice there as an Advocate and failed to appear in the appeal before the District Court though he had undertaken to do so. The plaintiff was required to engage another pleader for the conduct of the appeal. He then made an application on 14 -1 -1956 to the Chairman of the Bar Council of the High Court of Judicature at Bombay for suitable action against the defendant and for directing him to refund the fees which he had received towards the appeal and the amount of inam. In his written statement dated 29 -2 -1956 tiled before the Bar Council the defendant admitted the receipt of Rs. 100 or so towards his fees in appeal and put forward evasive pleas in other respects, throwing the entire burden on his deceased clerk Voarappa Dambal. The Bar Council informed the plaintiff by its letter dated the 13th of April 1958 that they could not take any action against the defendant. The plaintiff then issued a number of notices and filed a suit on 16 -4 -1958 claiming Rs. 101 and Rs. 110 paid respectively towards inam and part of the fees in the appeal on 11 -4 -1949, Rs. 25 paid by cheque on 21 -8 -1948 and Rs. 100 paid in cash on 4 -1 -1951 towards the balance of fees in the appeal. In his lengthy written statement the defendant did not specifically state what sums were paid to him on 11 -4 -1949 but simply pleaded that he did not admit the correctness of the amount of Rs. 411 or the details thereof. According to him, Rs. 25 were paid for sundry expenses. He denied to have received Rs. 101 towards his fees or inam. He admitted the receipt of Rs. 100 as part payment of his fees in appeal in which he appeared on certain dates. He pleaded that the plaintiff had availed himself of his professional services in two or three other matters and that nothing was due to him.

(3.) IN the appeal, the first point argued on behalf of the appellant is that the trial court should not have disposed of the suit without recording evidence on all the issues as even the question of limitation depended on elucidation of certain facts from the defendant. There is no force in this contention. It is unfortunate that the plaint as drafted and filed in the trial Court was patently defective as it contained BO statement of the grounds as required by Order VII Rule 6 of the Code of Civil Procedure to show how the claim was in time. There was, however, a statement that the law of limitation was not applicable to the claim in suit. That was not wisely pressed. The learned Civil Judge ought to have called upon the plaintiff to submit a concise statement of the grounds on which he claimed exemption from the bar of limitation.