D KALIAPERUMAL Vs. VEDAVALLIAMMAL

JUDGEMENT

(1.) THE appellant is the defendant in O. S. No: 28 of 1991 on the file of the Principal District Munsif, Karaikkal. THE plaintiff filed a suit on the strength of the Promissory Note dated 7. 9. 1985 executed by the defendant for a sum of Rs. 10, 000/= and the suit was filed for recovery of a sum of Rs. 16, 000/= with interest and cost. THE suit was instituted on 24. 1. 1991. Apart from disputing certain facts, the defendant admitted execution of Ex. P. 1, Promissory Note. THE Trial Court dismissed the suit. THE plaintiff filed the Appeal in A. S. No. 4/92, which was allowed by the Additional District judge, Pondicherry at Karaikkal. Hence the Second appeal.

(2.) AT the time of admission, the following substantial questions of law were framed by this Court: - (i) Whether the lower appellate court has committed illegality in its judgment by solely resting its hand on Section 118 of the negotiable Instruments Act by ignoring Illustration (g) of Section 114 of the indian Evidence Act" (ii) Whether the lower appellate court has erred in not considering the deposition of P. W. 1 being the plaintiff in the actual background of the case" (iii) Whether the defendant/appellant is not entitled to rebut the presumption raised under Section 118 of the Negotiable Instruments Act by adducing direct and circumstantial evidence invoking Illustration 9g) of section 114 of the Indian Evidence Act""

(3.) OUR High Court while following the above judgment of the Supreme Court in the case of Suryagandhi Vs. Lourduswamy, reported in 2002 (4) CTC 31, has held as follows: - "33. The learned counsel for the appellant relied upon a recent pronouncement of the Apex Court in Syndicate Bank Vs. Prabha d. Naik and another reported in 2001 (4) SCC 713 and contended that Limitation act, 1963 is the general law of Limitation for while of India and the provision regarding the remedy as provided in the Civil Code is deemed to be replaced by implication. The learned counsel relied upon the said pronouncement where the apex Court held thus: - "21. Needless to record that our concurrence to the observations of the High Court in regard to a special Law of Limitation is provided for enforcement of the rights arising under that Code itself, is by reason of the fact that Law of Limitation is a procedural law and the provisions existing on the date of the suit apply to it (reference may be made to the decision of this Court in C. Beepathuma v. Velasari Shankaranarayana kadambolithaya ). 22. Admittedly, the Limitation Act is a statute enacting the provisions in general terms applicable to the entire country excepting the exception as mentioned in the statute itself. It is a later statute of the year 1963 only that Portuguese Civil Code assuming had its application in the State of Goa, Daman and Diu and an earlier statute thus stands altered, as the latter is expressed in affirmative language, more so by reason of specific application of the Negotiable Instruments Act and Indian Contract Act: It thus cannot but be said to be repealing by implication affirmative statute introductive of a new law do imply a negative (Harcourt v. Fox ). 23. As regards the doctrine of implied repeal, another aspect of the matter ought to be noticed vis-' ; -vis the Civil Code. The issue of limitation being a mixed issue of law and fact under the limitation Act, the court in spite of plea not being raised by the defence, can go into the same suo motu but there is a specific bar under Article 515 of the civil Code which records that the court cannot suo motu take cognizance of description (sic prescription) unless it is specifically pleaded by the parties. It is a bar to jurisdiction of court. The repugnancy and incongruity arise by reason of the fact that Parliament by law viz. the High Court at bombay: (extension of jurisdiction to Goa, Daman and Diu) Act, 1981 extended the jurisdiction of the High Court of Judicature at Bombay to the Union territory of Goa, Daman and Diu from the appointed day and the Court of judicial Commissioner was abolished. Section 9 of the statute [ (Act of 1981) (supra)] provides that there shall be, on and from the appointed day, established a permanent Bench of the High Court of Bombay at Panaji and some judges of the High Court at Bombay being not less than two in number or as may be nominated by the Chief Justice of the High Court from time to time shall sit at Panaji, in order to exercise the jurisdiction and power for the time being vested in the High Court in respect of cases arising in this Union Territory. The authority and jurisdiction of the High Court of Bombay, to take cognizance of an action being barred by limitation, thus stands negated conceptually even a difficult situation to conceive that the same High Court will have two different spheres of jurisdiction while dealing with matters. At the cost of repetition we say that while implied repeal is not to be readily inferred but in the contextual facts, upon scrutiny, we cannot but hold that in the wake of the factum of the Limitation Act coming into existence from 1-1-1964, Article 535 of the Portuguese Civil Code cannot but be termed to be impliedly repealed and it is on this score that the decision of this Court in Justiniano case1 stands overruled. There is one general law of limitation for the entire country, being the Act of 1963, and the Portuguese civil law cannot be termed to be a local law or a special law applicable to the State of Goa, Daman and diu prescribing a different period of limitation within the meaning of Section 29 (2) of the Limitation Act and in any event, question of saving of local law under the Limitation Act of 1963 does not and cannot arise. The submission that without there being a specific mention of repealing statute (since the 1963 Act of Limitation does not record express repeal of any other law excepting the limitation Act of 1908), question of the Portuguese Civil Code being repealed does not arise, cannot hold good by reason of the doctrine of implied repeal as noticed above. In the premises aforesaid, these appeals fail and are dismissed without however any order as to costs. " This pronouncement is against the plaintiff and the view of the first appellate court is not sustainable in any view. "