KAMA Vs. SUNDAR

JUDGEMENT

(1.) The defendant/appellant is aggrieved by the decree concurrently passed by the two Courts below directing a suit for redemption of mortgage of a house to be decreed in favour of the Plaintiff/respondents.

(2.) WHERE , before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property of right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.

(3.) The sum and substance of the submission made by the learned counsel for the appellant is that the evidence adduced by the plaintiff/respondents falls short of proving that the plaint containing the acknowledgment was signed by the mortgagee. Technically, the learned counsel for the appellant may be right. However, a civil suit has to be decided not by testing impact of the testimony with technicality but by applying the principle of perponderence of the probabilities, in the back drop of the definition of term 'proved' occurring in Section 3 of the Indian Evidence Act, 1872. A Plaint filed in the Civil Court has to be signed by the party and his pleader as prescribed by Order 6, Rule 14 CPC. It can very well be presumed that the plaint was so signed If only it would not have been so signed, it would have been directed to be taken off the file and the litigation originating with that plaint would not and could not have travelled upto this Court in second appeal. If only, the availability of that Plaint as an acknowledgment was sought to be objected to, on the ground of its having not been signed, the defendant in his written statement herein should have specially taken that plea in the written statement, in face of the pleadings raised in the plaint. As already noticed, such a plea is not to be found taken in the written statement, nor raised before any of the Courts below.