DEEP SINGH Vs. SUGAN CHAND

JUDGEMENT

(1.) THIS is an appeal under sec. 18 of the Rajas than High Court Ordinance against the judgment of Jagat Narayan, J. in a Civil Second Appeal. The suit out of which the second appeal had arisen was filed by Sugan Chand and Chiranjilal plaintiff-respondents against Bal Singh and Deep Singh. The suit was based on a bond dated Jeth Badi 15, Sambat 2001. Under the terms of the bond, 55 Mds. of grain were to be delivered by Bal Singh to the plaintiffs in three instalments, as noted below - 15 Mds. of Gawar on Jeth Sudi, Sambat 2001 20 Mds. of Dhan on Kartik Sudi 15, Sambat 2001 20 Mds. of Dhan on Baisakh Sudi 15, Sambat 2002 It was farther provided in the bond that in case there was default in the delivery of any of these instalments, the plaintiff's shall be entitled to recover the entire quantity of grain due irrespective of the instalments. Out of the grain which was to be delivered for the first instalment, 11 Mds. 25 srs. were delivered on Asadh Badi 2, Kartik Sudi 15, Sambat 2001and no more gain was delivered. The plaintiffs therefore brought the suit for recovery of Rs. 1,500/-/- as price of the grain which remained to be delivered under the bond. Bal Singh admitted the execution of the bond but pleaded that he had delivered the entire grain while Deep Singh pleaded that he had nothing to do with the bond and he was not liable under it. In the trial court Bal Singh died and Deep Singh, who was his son, remained on record as his legal representative also. The trial court held that the entire grain due under the bond was delivered and the suit was dismissed. THIS led to an appeal by the plaintiff to the court of the District Judge, Merta, who did not agree with the finding of the trial court that the entire grain had been delivered. He, however, held that the suit was barred by limitation under Art. 75 of the Indian Limitation Act and dismissed the suit on this ground. The plaintiff then filed a second appeal in this Court which was disposed of by Jagat Narayan, J. The learned Judge held that the time for the recovery of the entire grain started running under Art. 75 of the Limitation Act when the default was committed on Jeth Sudi 1, Sambat 2001 but there was the question of waiver by the plaintiffs which must be determined by the trial court. He, therefore, remanded the case to the lower court for decision according to law after framing an issue as to whether the plaintiffs waived the benefit of the first default within the meaning of Art. 75 of the Limitation Act.

(2.) ARGUMENTS have been addressed before us by the learned counsel of the parties whether in the circumstances of the case there was waiver or not, but Jagat Narayan, J. has not expressed any final opinion on this point. He has left the matter to be determined by the trial court.