TATIA, J. - (1.) THIS is appeal against the judgment and decree dated 22. 8. 1983 passed by the learned Additional District Judge No. 2, Jodhpur in Civil Original Suit No. 32/80 by which the trial Court dismissed the suit of the plaintiff for recovery of Rs. 21,441. 76 holding the suit of the plaintiff as barred by time.
(2.) THE plaintiff filed the suit for recovery of the above amount alleging that the plaintiff was engaged by the defendant deceased Goswami Brij Bhushan for preparing coloured moves for the marriage of defendant's sons Navneet Baba and Balkrishan Baba and for thread-ceremony of defendant's daughter's son. According to the plaintiff he completed the job and submitted bill for Rs. 24,766/ -. THE plaintiff paid Rs. 5000/- on different dates in advance and also paid Rs. 4000/- on 20. 8. 1974. THE above functions in the family of the defendant took place in the month of May, 1973. THE defendant, despite request from the plaintiff, did not pay the balance amount of Rs. 15,766/-, therefore, the plaintiff filed suit for recovery of the above amount and claimed interest at the rate of 12% per annum. In the trial Court, the plaintiff appeared as PW-1 and also produced the witness PW 2 Daulal. THE plaintiff produced the bill Ex. 1, letters of the plaintiff dated 6. 1. 1974 Ex. 2 and Ex. 3 and the other documents were also produced including the notice dated 20. 7. 1977 served on behalf of the plaintiff by his advocate upon the defendant and the reply which was given by the advocate of the defendant on 9. 8. 1977. THE defendant did not produce any in evidence in rebuttal nor he himself appeared in witness box. The trial court decided all the issues in favour of the plaintiff except the issue of limitation. The trial court held that the plaintiff was engaged for doing the job of photography and preparing the coloured moves. The trial Court found that bill was submitted by the plaintiff and the plaintiff is entitled for the interest over the above amount. While deciding issue No. 8, the trial court took note of the fact that the job was completed in the month of May 1973 but the suit was filed on 19. 8. 1977, therefore, the suit of the plaintiff, filed after three years, was barred by time. The trial court negatived the plea of extension of period of limitation on the ground of part payment coupled with the acknowledgment in writing of the defendant to save the limitation for filing suit. Therefore, the only points involved in this appeal are whether the suit of the plaintiff is barred by time or not and whether the plaintiff is entitled to have extension of period of limitation in view of the fact that the defendant himself paid Rs. 4000/- to the plaintiff on 20. 8. 1974 and it was acknowledged in writing by the defendant through his agent (advocate) and whether the written acknowledgment through the agent, can be a valid acknowledgment in case part payment was made by the principal himself in view of the provision to Section 19 of the Indian Limitation Act. The trial Court decided against the plaintiff on the ground that as per Section 19 of the Indian Limitation Act, the limitation can be extended only when part payment is made within the period of limitation available to the plaintiff and the trial court also held that mere part payment of the debt cannot extend the period of limitation unless it is acknowledged by the debtor within the period of limitation. So far as finding of the trial court that if part payment is made within period of limitation but acknowledgment in writing is not within period of limitation then benefit of extension of period of limitation is not available is concerned, it appears that the learned Judge of the trial court has misread the law laid down by the Hon'ble Supreme Court in the case of : Sant Lal Mahton vs. Kamla Prasad and Others (1), wherein the Hon'ble Apex Court categorically held that the requirement of Sec. 19 for fresh period of limitation is only part payment towards the debt by the debtor either directly or through his agent. The acknowledgment in writing of the part payment can be even after period of limitation but it must be before filing of the suit by the plaintiff. Therefore, the learned trial judge has wrongly applied the law and wrongly held that the suit of the plaintiff is barred as acknowledgment was not made within the period of limitation.
(3.) EVEN after holding that limitation can be extended by part payment within a period of limitation and acknowledgment in writing of part payment made even after expiry of the period of limitation but before the filing of the suit by the plaintiff will extend period of limitation even then in this case the questions survive are that : (1) whether the defendant made the payment of Rs. 4000/- on 20. 8. 1974?, (2) whether there is any acknowledgment of part payment in the reply dated 9. 8. 1977 signed by the defendant through his advocate in reply to the notice of the plaintiff dated 20. 7. 1977? and (3) whether the alleged acknowledgment in the reply dated 20. 8. 1974 is a valid acknowledgment of the part payment of the debt of the defendant. The learned counsel for the appellant relied upon the plaintiff's statement on oath that the defendant paid Rs. 4000/- to the plaintiff in cash on 20. 8. 74. since the job was completed in the month of May, 1973, therefore, this part payment is within the period of limitation. To prove part payment, the plaintiff's statement has not been rebu- tted by the defendant by appearing in the witness box and there is notice dated 20. 7. 77 wherein he categorically stated that the defendant paid Rs. 4000/- in cash on 20. 8. 74 and implied admission of payment by the defendant in reply to the plaintiff's notice. The learned counsel for the respondent tried to submit that the above payment of Rs. 4000/- was denied by the defendant in reply Ex. 16 dated 9. 8. 1977 of the plaintiff's notice and in the written statement but there is no force in the submission of the learned counsel for the respondent because of the reason that even the defendant did not choose to prove it by evidence. Not only this but the language used in para No. 3 of the reply to the notice where there is a mention of Rs. 4000/- with the date of 20. 8. 1974, the reply is vague. In para No. 5 of the reply to notice there is clear admission of payment of Rs. 9000/- by the defendant to the plaintiff which includes Rs. 5000/- the advance amount and Rs. 4000/- paid on 20. 8. 1974 after the job was completed, therefore, it is proved, as a matter of fact, that the defendant paid Rs. 4000/- to the plaintiff on 20. 8. 1974. ;