ISMAIL KHAJUJI Vs. VENICHAND NANDAJI

JUDGEMENT

(1.) THE applicant Ismail has filed this petition for revision against the judgment of the Second Additional District Judge, Jhabua, allowing the appeal filed by the non -applicants against the judgment passed by the Civil Judge, 2nd Class, Jhabua, in Civil Suit No. 153 of 1954. The non -applicants (plaintiffs) had brought the suit for recovery of the price of 5 Mania of Makka at the rate of Rs. 5 per Mani alleging that the defendant Ismail had agreed to supply 15 Mania of Makka at that rate to the plaintiffs on behalf of one Sagarmal on 9 -11 -1919. He had supplied only 10 Mania and 5 Mania remained to be supplied. It was claimed that the suit was within time, as on 18 -10 -1951, the defendant Ismail, who was examined as a witness in a suit by the plaintiffs against Sagarmal, had admitted that he had agreed to give 15 Manis of Makka on behalf of Sagarmal to the plaintiffs.

(2.) THE only point which has been raised in this revision by Shri C.B. Sanghi for the applicant is that the Courts below erred in holding that the limitation for filing the suit was extended by the alleged acknowledgment. Before I take up this point, it is necessary to dispose of a preliminary objection raised by Shri Garg for the non -applicants. He contends that under Chapter IV, Rule II of the High Court Rules of Madhya Pradesh, the petition for revision should have been filed within 45 days of the order, excluding the days for copying. The judgment in this case was pronounced on 29 -7 -1959. An application for copies was made on 10 -6 -1959, but the necessary copying charges were paid on 3 -9 -1959, although the copies were ready for delivery on 19 -8 -1959. Shri Garg contends that the days necessary for copying to be excluded in this case should be only from 10 -8 -1959 to 19 -8 -1959. The relevant rules relating to grant of copies are contained in Appendix X of the Rules and Order for Civil Courts in Madhya Bharat. Rule 5 provides for an application for copies being made on an advance of eight annas only. "On payment of the advance, a date not later than three days shall be fixed for payment of the balance of the requisite copying fees". The duty of fixing the date for payment of the balance of the requisite copying fee is thus imposed on the copying department. In the instant case, a peculiar procedure was followed by the department in as much as the copy was begun and completed before any deposit was made. As the department did not perform its duty of fixing a date for payment; of the balance of the requisite copying fee, the applicant cannot be blamed for not paying the requisite copying fee within three days of the application. Further, although the copy was ready on 19 -8 -l959, no date for the appearance of the applicant was fixed, nor was any intimation given to him that the copy was ready for delivery. He appeared on 3 -9 -1959 and paid the necessary deposit on the same date. Considering all these circumstances, it appears to me that the applicant is entitled to exclude the whole period between 10 -8 -1959 and 3 -9 -1959. Excluding this period, the petition for revision is in time. I shall now consider the contention of Shri C. B. Sanghi that the statement of the applicant made on 18 -10 -1951 in the previous suit did not amount to an 'acknowledgment'. The statement made by Ismail in that case is Ex. P/2. In that statement, the applicant had admitted that he had agreed to supply 15 Manis of Makka on behalf of Sagarmal to the plaintiffs, but had also added that he had delivered the whole quantity of 15 Manis according to the contract and nothing remained to be given. It is rightly contended that such a statement does not amount to an acknowledgment at all. The acknowledgment must be an admission of an actually existing debt and it will not suffice if it merely shows that a debt was due at some prior time. The debt must exist at the date of admission.

(3.) I have no doubt that the lower appellate Court was in error in holding that the statement of Ismail amounted to an acknowledgment and gave a fresh start to limitation under section 19 of the Indian Limitation Act. The petition for revision is accordingly allowed and the decree passed by the lower appellate Court is set aside. Instead, the decree of the trial Court dismissing the suit is restored. The non -applicants shall pay the costs incurred by the applicant throughout. Hearing fee is fixed at Rs. 25 only.