MODI, J. - (1.) THIS is a plaintiff's second appeal in a suit for money which has been dismissed by both courts below.
(2.) THE facts leading up to this appeal lie within a very short compass. THE case of the plaintiff was that the defendants used to borrow money and grain from the former from time to time and that on Posh Vadi 12 Smt. 2008 they went into accounts and struck a balance according to which a sum of Rs. 236/10/- was found payable in cash, and grain weighing 38 maunds and 1-1/2 seers was also found payable by them to the plaintiff, and defendant Mangilal as Karta of the joint Hindu family consisting of himself and the other defendants Prabhulal signed the entry. As the defendants did not repay the loan, the plaintiff instituted the present suit for a sum of Rs. 779/14/-against both defendants on the 21st December, 1954, in the court of the Munsiff Iklera. THE defendants admitted that the khata had been signed by one of them viz. , Mangilal but they further pleaded that they had no dealings whatsoever with the plaintiff for the last 20 years preceding the institution of the suit and Mangilal had signed the Khata as the plaintiff said that the said amount was due from his (defendants) father. It was further pleaded that the plaintiff had agreed to explain the accounts to them but he never did so. THE only other plea which it is necessary to mention in connection with the defence is that the defendants also raised the contention that the suit was barred by limitation. On these pleadings, the trial court framed four issues which it is unnecessary to mention because that court did not dispose of the suit on any of these issues. It seems, however, that during the course of the arguments, a plea was raised on behalf of the defendants that the plaintiff's suit was based on a mere acknowledgment, and, therefore, was not maintainable. Reliance was placed in support of this view on the Full Bench decision of this Court in Hastimal Vs. Shankerdan (1) and Ramdayal Vs. Maji Deoriji of Riyan (2 ). In this state of the law, the trial court came to the conclusion that the suit having been brought on the basis of a mere acknowledgment was not maintainable, and so it dismissed the same with costs. Thereafter the plaintiff went in appeal to the Civil Judge, Jhalawar. It seems to have been contended before the lower court of appeal that the Khata which had been made the basis of the suit in this case amounted to an "account stated", and therefore, it could be made the basis of the suit. The learned Judge, however, repelled this plea, and, in my opinion, rightly, and held that the khata on which the suit was based amounted to an acknowledgment nothing more and nothing less, and in view of the two decisions of this Court to which reference has been made above, he maintained the dismissal of the suit. The learned Judge made it clear towards the end of his judgment that no application praying for an amendment of the plaint so as to base the suit on the original cause of action had been made in the trial court, nor any such application had been made to him upto the time of the judgment. This judgment was given on the 28th October, 1955. Aggrieved by this, the plaintiff has now come up in second appeal to this Court. Two points have been strenuously urged before me on behalf of the plaintiff. The first is that the Khata in suit does not amount to a mere acknowledgment. The second is that even if it does amount to an acknowledgment only, a suit can be founded on it. Now so far as the first point is concerned, I have carefully read the entry contained in the Khata more than once, and I have no hesitation in coming to the conclusion that it amounts to a mere acknowledgment and nothing more. The entry in the Khata runs as follows; - ******** The main contention of learned counsel is that this Court should hold the entry to be an agreement (or even a bond as it was attested) because the defendant Mangilal has said therein that the money and the grain which were entered into the Khata were due from him. The exact Hindi expression used by him in the entry to which specific attention may be drawn is Ns. kk** which, in my opinion, meaNs "payable", and no more. Now so far as I understand the case law on the point, there is an overwhelming authority in favour of the view that the expressioNs like ******** do not import a distinct promise to pay and merely amount to an acknowledgment under sec. 19 of the Limitation Act or Art. 1 Schedule 1 of the Stamp Act. It is also significant that this entry bore a one anna stamp. Reference may be made in support of this view to Maganlal Vs. Amichand (3), Sasi Kanta Vs. Sonaulla (4), Girdhari Lal Vs. Firm Bishnu Chand (5), Shamilal Vs. Gulab Chand (6) and Shiv Ram Punnun Ram Vs. Faiz (FB) (7 ). Learned couNsel has drawn my attention to Shanti Parkash Vs. Harnam Das - FB (8) but this case, in my opinion, is distinguishable on facts because there was an agreement to pay interest there and thereby the entry could not be held to amount to a mere acknowledgment but became an agreement to pay. In any case, I am of opinion that certain expressioNs of opinion as regards the true effect of words ******** in the aforesaid judgment cannot be understood to represent the final opinion of that court in view of its subsequent Full Bench decision in Shiv Ram Punnu Ram Vs. Faiz, Supra. As I am in respectful agreement with the view taken in the large number of cases to which I have made reference above, 1 have no hesitation in holding that the khata which was made the basis of the suit in this case is an acknowledgment pure and simple and does not amount to an agreement to pay and much less to a bond. This brings me to the second question as to whether a suit can be founded on such an acknowledgment. Now it is the settled view in this Court that a mere acknowledgment does not furnish a new cause of action. This view was first taken in a Bench decision of this Court in Kanraj Vs. Vijaisingh (9 ). It was held in that case, after an elaborate discussion of the rulings of the various Indian High Courts, that an acknowledgment of liability did not create a new right on which an action could be founded but it only kept alive the original cause of action if it was made before the expiry of limitation, and, consequently, it could not furnish an independent cause of action for a suit. This view was thereafter approved by the Full Bench decision of this Court in Hastimal Vs. Shankerdan, supra, and it was again reaffirmed and followed in Ram Dayal Vs. Maji Deoriji of Riyan (Supra), This last case, it may be noted, was decided on the 31st August 1954. In this state of the case law in our own Court, it is too late in the day for learned counsel to ask me to hold that a mere acknowledgment within the meaning of Sec. 19 of the Limitation Act can furnish a fresh cause of action on which a suit can be founded. I may also add that this view is re-inforced by a recent decision of their Lordships of the Supreme Court in S. F. Mazda Vs. Durga Prosad (10), in which it appears to have been held that an acknowledgment as prescribed by Sec. 19 merely renews a debt and does not create a new right of action. The position is, therefore, inescapable that the present suit as it has been brought cannot be maintained. Faced with this situation, learned counsel for the plaintiff appellant prayed that he may be allowed an opportunity to amend his plaint. Normally, 1 should have considered this request with sympathy. But the circumstances of this case do not incline me to do so. It will be remembered that, as already stated, this suit was brought on the 21st December, 1954. It cannot be gainsaid that long before that time, a Full Bench of this Court had held that a mere acknowledgment cannot furnish a new cause of action to a suitor and that it only enures to save limitation provided that the acknowledgment was made before the expiry of limitation. That being so, it was the duty of the plaintiff to have brought his suit on the original cause of action when his suit came to be filed long after the full bench decision of this Court. The matter does not rest there; when this objection was raised before the trial court, no prayer was made to it to allow an amendment of the plaint. Such a prayer, curiously enough, was not made even before the lower court of appeal as expressly stated by it in its judgment. Again, no such prayer came to be made even in the memorandum of appeal filed in this Court, and almost six years have gone by since then and it was only at the fag-end of his arguments, in this court that learned counsel has thought fit to move this Court with his prayer for allowing him an amendment of the plaint. 1 am strongly of the opinion that a prayer like this comes too late in the day and does not deserve to be accepted. I may also add that even today learned counsel cannot satisfy me that the acknowledgment, on which the suit has been founded, as it stands, was made before the expiry of limitation for the suit if one were to be filed on the original cause of action. In these circumstances, I am constrained to reject the prayer for amendment. The result is that this appeal fails and is hereby dismissed; but having regard to all the circumstances of the case, I would leave the parties to bear their own costs throughout. .;