A SHOP STYLED IN THE NAME OF BAKATRAM NANURAM BY ITS OWNER MINALAL SHADIRAM Vs. KHARSETJI JIVAJISHET

JUDGEMENT

(1.) In this case we need only deal with the question of limitation. The Subordinate Judge held that there was no bar of limitation because if the plaintiff had been sued on the bond, he could raise the pleas which are the foundation of his present suit, There are no authorities for such a proposition, and the learned Counsel for the plaintiff before us did not support it. But he contended that though the main prayer of the plaint (that the bond should be set aside) might be barred, still he was entitled to a declaration that the bond was void, and that for such a claim the period of limitation would be six years.

(2.) We do not think that this contention is sound. The plaintiff seeks equitable relief under Section 39 of the Specific Belief Act and asks to have the bond adjudged void, and prays that the Court may in its discretion so adjudge it, and order it to be delivered up and cancelled. That was his prayer upon which the parties went to trial.

(3.) To such a case, we think, Art. 91 of the Limitation Act, Schedule II, applies. This is not a document which is said on the face of it to be void; it can only be adjudged void if the facts which the plaintiff asserts can be proved.