LODHA, J. - (1.) THIS is an appeal by an unsuccessful plaintiff Hanutaram whose suit for recovery of Rs. 3613/- was decreed by the trial court to the extent of Rs. 3000/- only but was dismissed by the District Judge, Bikaner on appeal by the defendants.
(2.) THE plaintiff Hanutram's case is that the defendants Nos. 2 and 3 Kanoram and Sukharam respectively took him to village Kansesar with a view to bring about the engagement of his daughter Imali with Taruram brother of defendant No 2 Kumbharam, but since he did not like the boy on account of the disparity of age between him and his daughter he refused to betroth his daughter with Tara Ram It is alleged by the plaintiff that inspite of his refusal, the defendant Nos. 2 and 5 gave out that Imali had been betrothed to Taruram and ultimately all the three defendants accornpained by some more persons came to his village and forced him to pay Rs. 3000/- to the defendants Nos. 1 and 2 Kumbha Ram and Kanaram on the pain of taking away his daughter Imali and forcibly marrying her to Taru Ram if he did not comply with their demand. THE plaintiff goes on to state that due to fear of his daughter being forcibly taken away for marriage with Taru Ram he paid Rs. 3000/- to the defendants No. 1 and 2. It appears there was also some criminal litigation between the parties but since Hanutaram was not successful to get back Rs. 3000/- alleged to have been paid by him to the defendants Nos. l & 2 under coercion, he filed the present suit on 27-9-61 in the Court of Civil Judge, Ratangarh for recovery of Rs. 3000/- along with interest Rs. 615/-, total Rs. 36i5 -. The suit was resisted by the defendants who put up a counter version and pleaded that no money was paid by the plaintiff, but as a matter of fact the plaintiff had betrothed his daughter Imali with Taruram on the condition that Rs 2500/-would be paid to him by Taruram's elder brother Kumbharam defendant No. 1 and that Rs. 1500/- were actually paid by Kumbharam to the plaintiff at the time of engagement and Rs. 1000/. were promised to be paid later on. The defendants' case is that the plaintiff resiled from his promise to marry his daughter to Taruram and performed her marriage with the son of one Udaram and accepted Rs 3000/- from Udaram in lieu of his marriage. It was pleaded that Hanutaram voluntarily returned Rs. 1500/- to the defendant No. 1 Kumbharam on account of having broken the engagement of his daughter, and that the plaintiff was not entitled to any relief. After recording the evidence produced by the parties the learned Civil Judge, Ratangarh by his judgment dated 28-2-1963 decreed the plaintiff's suit for Rs. 3000/- Aggrieved by the judgment and decree by the trial court the defendants filed appeal in the Court of District Judge, Bikaner who, as already stated above, reversed the judgment and decree by the trial court and dismissed the plaintiff's suit. Consequently the plaintiff has come in second appeal to this Court. At this stage it may be necessary to point out that the plaintiff's suit was resisted by the defendants on the ground of limitation as well and issue No. 5 was struck on the question of limitation, which runs as follows: - "3. Whether the suit is within limitation?" The trial court decided the issue against the defendants by simply observing that the issue had not been pressed by the parties during the course of arguments. In appeal before the learned District Judge the defendants agitated the question of limitation and the learned District Judge held that the suit was governed by Article 63 [of the Indian Limitation Act, 1909 which was in force at the time of the institution of the suit, and that it was barred by time. However the learned District Judge dealt with the case on merits also and found, that the plaintiff's version was incorrect and that he had not paid Rs. 3000/- or any amount as alleged by him to the defendants. While hearing this appeal I called upon the learned counsel for the appellant first to deal (with the question of limitation which goes to the root of the case. On hearing the learned counsel for the parties, I have come to the conclusion that the plaintiff's appeal must fail on the ground that the suit was barred by limitation, and therefore I have not heard the learned counsel for the parties on other points. I shall now proceed to give reasons in support of my finding that the suit is barred by limitation. Learned counsel for the appellant argued in the first instance that it was not open to the learned District Judge to non suit the plaintiff on the question of limitation because the defendants had given up the plea of limitation before the trial court. In support of his contention he relied upon: Sukhlal vs. Deapchand (1) and Anant Mal vs. Lala (2 ). It was held in these cases that an appellant cannot be permitted to raise a plea in second appeal which was abandoned by him in the court below and that issues abandoned by a party going the trial of the suit cannot be revived. It may be pointed that none of these two cases deals with an issue of limitation as a pure question of law. In my opinion, where issues regarding jurisdiction and limitation as questions of pure law are involved, and they go to the root of the matter the right to raise an issue cannot be treated as having been waived. In Kundo Mal vs. Daulat Ram (3) it was observed that there is abundant authority in support of the proposition that objections regarding limitation cannot be waived and even if they are waived they can be raised again by the parties waiving them or by the Courts themselves In support of the aforesaid observation the learned judges relied on Des Raj vs. Lachhi Ram (4), Hukam Singh vs. Shahar Din (5), Radha Mohan vs. Ami Chand (6), Ram Charitter vs. Suraj Teli (7), and Surayya vs. Venkatarammanamma (8 ). Again in Pallakdhari vs. Bankey (9) it was argued that the question of limitation having not been pressed in the trial court, the first appellate court ought not to have allowed the defendants to raise the question in appeal. It was pointed out that the question was raised in the written statement and an issue was also framed and that even if it was not pressed in the trial court, it was open to the defendants to press the point of limitation on appeal. In this connection reliance was placed on sec. 3 of the Limitation Act. The same view was taken in Sheikh Makbul vs. Union of Indiaf (10 ). I may here point out that distinction must be made between cases where the question of limitation raised is a pure question of law and where it is a mixed question of fact and law and the parties had no opportunity to meet it on evidence. In case it is a question of pure law, the right to raise an issue of limitation cannot be waived. In this connection reference may be made to sec. 3 of the Limitation Act which runs as under: - "3. Subject to the provisions contained in secs. 4 to 23 (inclusive), every suit instituted, appeal preferred and application made after the period of limitation prescribed therefor by the first schedule shall be dismissed, although limitation has not been set up as a defence. " A plain reading of this section shows that the court is bound to dismiss a suit or other proceeding which has been instituted after the period of limitation although limitation may not have been set up as a defence. In the present case the issue of limitation has been raised as a pure question of law. According to the plaintiff Rs 1000/- were paid on 5-4-1958 and Rs. 2000/- were paid on 18-4-1958. The suit has been filed on 27-9-1961 that is after more than three years of the alleged payments. The only question for decision is whether the suit would be governed by Art. 62 or by Art. 120 of the Limitation Act, 1908. No question of fact is involved for decision of this point and therefore the issue of limitation raised in this case must be treated as one of pure law. Consequently, the defendants cannot be debarred from agitating the question of limitation in appeal even though the issue regarding limitation was not pressed by either party before the trial court. This brings me to the question whether the suit has been rightly held to be barred by limitation under Art. 62 which prescribes a period of three years from the date when the money is received. The learned District Judge has relied on T. S. R. B Cooperative Society vs. S. Sundarm (11) and Johari Lal vs. B. S. Co-op. Bank (12) in support of his conclusion that the suit would be governed by Art. 62 of the Limitation Act and noy by Art. 120.
(3.) IN T. S. R. B. Cooperative Society vs. S. Sundaram (11) after an elaborate discussion of the case law bearing on the subject the learned Judge observed as follows - "of the two views that can be taken on the interpretation of the Article one is that the Article should be strictly construed or in other words that the expression 'money received by the defendant for the plaintiff's use' should be given its literal meaning, and the other is that the expression should be understood in the sense in which it is used in English Common Law as a cause of action. If the expression is strictly construed the Article can apply only to cause in which the defendant receives money for the use of the plaintiff and cannot apply to cases in which the defendant wrongfully receives money from the plaintiff. But if the expression is understood in the sense in which it is used in English Common Law as a cause of action the Article will apply to all cases in which "the defendant has received money which in justice and equity belong to the plaintiff under circumstances which in law render the receipt as a receipt by the defendant for the use of the plaintiff. In the case it will apply to suits "for money got through imposition (express or implied) or extortion or oppressions or an advantage taken of the plaintiff's situation", and to cases in which "money is paid by the plaintiff in discharge of a demand illegally made under colour of an office". On the strength of the rulings of the various High Courts in India referred to above we prefer to take the view that the expression has to be understood in the sense in which it is used in English Common Law as a cause of action. The fact that Courts in India are Courts of Law and equity cannot affect this question, Article 62 came up for interpretation before this Court also in Jain Bros. and Co, Bundi vs. The State of Rajasthan (13 ). That case arose out of a suit for refund of a sum of money which was received by the defendant State from the plaintiff by way of Sales Tax. There being no sanction of law behind it, the money which was exacted by the defendant from the plaintiff was held to be immediately returnable to him that is at the very time of receipt and therefore the defendant was held to have received it in law for the plaintiff's use. In this view of the matter the suit, it was held, properly fell within the ambit of Art 62 and no other and it was further observed that the residuary Art. 120 could not be applicable to it. The Travancore Cochin case (11) referred to above was relied upon by the learned Judges and it was observed "that the correct interpretation to be put on the words in Art. 62 is the one which should conform to the meaning of these words in the english cases, and that a simple or literal interpretation of these words, which appear to us to be clearly technical, as discussed above would not be correct. " It was further held "that Article 62 governs suits money, had and received not only where the defendant may have actually received money for the use of the plaintiff as his agent or in a like capacity, but it also governs suits for money whereof it can be rightly postulated that the defendant has received money which he had no right to receive and the receipt thereof by the defendant therefore accounts in law or by a legal fiction to a receipt by him for the plaintiff's use. " From the observations extracted above it would be clear that this Court has preferred to take the view that the expression "money received by the defendant for the plaintiff's use' occurring in Art. 62 has to be understood in the cases in which it is used in English Common Law as a cause of action. ;