JAGJIVANDAS BHIKABHAI Vs. GUMANBHAI NAROTTAMDAS

JUDGEMENT

(1.) This is a second appeal by the original plaintiff whose suit to recover Rs. 5100/from the defendant said to have been paid on 21-6-49 was dismissed by the District Judge Broach who held that the amount has been paid on 14-6-49 and that therefore the plaintiffs suit filed on 20 was barred by limitation.

(2.) In second appeal the learned counsel for the appellant concedes that there is a finding of fact that the amount Rs. 5100/was paid on 14-6-49 and that if this finding is correct the suit would be obviously barred by limitation as it was filed more than three years after that date. But he contends that this finding of fact is vitiated by overlooking the question of estoppel. He urged that even if the money was paid on 14-6-49 there was an agreement or understanding between the parties that the money was to be treated as having been paid on 21-6-49. He stated that estoppel had not been pleaded either in the plaint or even in the first appeal. He however relies on Abdullah Shah v. Mohammad Yaqub A I R 1938 Lahore 558 and on Co-operative Town Bank v. Shanmugam A I. R. 1930 Rangoon 265 and contends that the question of estoppel can be raised even in second appeal. In the Lahore case the facts on which the plea of estoppel was based were on the record and the estoppel was based on the footing of the finding of the learned District Judge himself. Therefore it was rightly held that in such cases the question of estoppel could be decided in second appeals although estoppel had not been pleaded in the pleadings. In the Rangoon case it was held that defence of estoppel can always be taken if it is warranted by the facts proved or admitted even if those facts have not been specifically pleaded. In both these cases therefore although the facts giving rise to estoppel were not pleaded they were proved by evidence or by admission. In the instant case however that is not the case that there was an agreement or understanding between the parties on 14-6-49 is neither pleaded nor proved by the evidence nor is there any finding of either of the Courts below relating to any agreement or understanding between the parties on 14 In these circumstances it is not open for the appellant in second appeal to raise the question of estoppel.

(3.) The learned counsel for the appellant also relied on a promissory note to prove that there was an agreement or understanding between the parties. But this promissory note has not been proved and is not admitted in evidence.