JANARDAN EKNATH Vs. GANESH SADASHIV

JUDGEMENT

(1.) ON the hearing of Second Appeal No. 549 of 1941 Mr. Justice Lokur and Mr. Justice Rajadhyaksha having found a conflict of authorities about the interpretation of Section 29(2) of the Indian Limitation Act, 1908, read with Section 72 of the Dekkhan Agriculturists Relief Act, 1879, referred the following question for the decision of a full bench: Having regard to Section 29(2) of the Indian Limitation Act, is the plaintiff in a suit governed by Section 72 of the Dekkhan Agriculturists' Relief Act for the purpose of limitation entitled to the benefit of Section 19 of the Indian Limitation Act?

(2.) THE short facts leading to this appeal are as follows. On March 6, 1929, the original three defendants passed a promissory note for Rs. 1,200 in favour of the plaintiff. On August 11, 1932, defendant No. 1 wrote a letter to the plaintiff which was contended to be an acknowledgment of the liability under the promissory note. Relying on that letter, the plaintiff filed the suit on June 2, 1938, against all the three defendants. THE common defence of all the defendants was that the letter in question did not amount to an acknowledgment. Defendants Nos. 2 and 3 further contended that they were not bound by the letter, because they had separated from defendant No. 1. THEre was also a dispute about the consideration. At the hearing the trial Court found against the plaintiff on the question of separation of defendants Nos. 2 and3. It also found that the letter in question did not amount to an acknowledgment and therefore dismissed the suit. THE plaintiff appealed. He did not contest the finding of the trial Court in respect of defendants Nos. 2 and 3, but contended that the letter amounted to an acknowledgment within the meaning of Section 19 of the Indian Limitation Act and defendant No. 1 was therefore liable on the promissory note. THE first Appeal Court rejected that contention and dismissed the appeal. THE plaintiff filed a second appeal. In the interval two decisions of this Court were pronounced. THE first was by Mr. Justice Divatia, sitting as a single Judge, in Keshav Krishna v. Bhagwan Sambhu (1941) 44 Bom. L. R. 138. That was in respect of the application of Section 20 of the Indian Limitation Act in the case of a suit covered by Section 3, Clause (w), of the Dekkhan Agriculturists' Relief Act. THE learned Judge held that the amended provisions of Section 29(2) of the Indian Limitation Act prevented the plaintiff from relying on Section 20 of the Act. Some time later Mr. Justice N. J. Wadia and Mr. Justice Sen in Kishorelal Stores v. Jagannath Bayaji (1943) 45 Bom. L. R. 1064 took a contrary view and differed from the view of Mr. Justice Divatia. THE referring judgment mentions both these cases which have given rise to this reference.

(3.) THE second argument, in my opinion, is also unsound. While under Section 72 of the Dekkhan Agriculturists' Relief Act the Legislature could have prescribed a schedule like the one found in the Indian Limitation Act, there appears no objection to achieving the same result in a different way by using appropriate words. It should be noticed that under Section 72 of the Dekkhan Agriculturists' Relief Act it is not one kind of suit for which one period of limitation is prescribed under all circumstances. It deals with several kinds of suits covered by Section 3, Clause (w), of the Dekkhan Agriculturists' Relief Act. It provides two different periods of limitation under two different circumstances. In my opinion, therefore, the word "substituted" as used in Section 72 is equivalent to prescribing the periods mentioned in Clauses (a) and (b) of Section 72 in place of those prescribed by the Limitation Act. That appears to be the natural and proper leading of the words used in Section 72 of the Dekkhan Agriculturists' Relief Act. I am unable to read the word "substituted" as amounting to an amendment of the schedule to the Indian Limitation Act, as contended by the plaintiff. On the construction of the section itself, I think it prescribes a period of limitation, for the suits mentioned therein, different from the period prescribed in sch. I, col. 2, and therefore Section 29(2) of the Limitation Act applies. That sub-section deliberately omits the applicability of Sections 19 and 20 of the Limitation Act to such suits and, therefore, the plaintiff's contention must fail.