Bhandari, J - (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. Jagat Narayan, J. has pointed out that the plea of limitation was not raised by the defendants in the trial court and it was first taken up when the case was before the lower appellate court. He has, therefore, thought it proper to remand the case for giving an opportunity to the plaintiffs to prove waiver. We are of the opinion that in this Special Appeal it would not be proper for us to interfere with the order of remand. We may, however, point out that; in a case to which Art. 75 is applicable it is the duty of the plaintiff to plead waiver by mentioning facts in the plaint which according to him constitute waiver, though it may be that the word 'waiver' as such is not expressly mentioned in the plaint. In this case the khata should be treated as part of the plaint and it has to be examined whether the allegations made in the plaint and the entries made in the khata constitute waiver or not. It may also be mentioned for the consideration of the trial court that it has to determine whether Art. 75 at all applies to a bond in which money is not to be paid but the grain is to be delivered. During the course of the judgment, Jagat Narayan, J. has disagreed with the view that acceptance of a part of an overdue instalment cannot amount to waiver. We may humbly mention that there is considerable room for argument to the contrary. We may, however, leave this matter also for decision to the trial court. The remand order may be allowed to stand in the special circumstances of the case. The Special Appeal therefore fails and is dismissed. .;