Jagat Narayan, J. - (1.) THIS is a second appeal by Suganchand and Chiranjilal plaintiffs whose suit for recovery of money on the basis of a bond executed by Bal Singh defendant was dismissed by the lower appellate court as being barred by limitation.
(2.) THE suit was brought against Bal Singh and Deep Singh on the allegation that they were members of a joint Hindu family of which Bal Singh was the Karta. Bal Singh admitted the execution of the bond dated Jeth Badi 15, Svt. 2001 on the basis of which the suit was brought. Under this bond 55 mds. grain was to be delivered by Bal Singh to the plaintiffs on account of previous dealings, in three instalments as follows : - 15 mds. on Jeth Sudi 1, Svt. 2001 20 mds. on Kartik Sudi 15, Svt. 2001 20 mds. on Baisakh Sudi 15, Svt. 2002. It was alleged in the plaint that no grain was delivered on Jeth Sudi 1, Svt. 2001 but out of the first instalment due 11 mds. 25. 1/2 seers grain was delivered 15 days after the due date which was accepted by the plaintiffs and the balance of the first instalment namely 3 mds. 14. 1/2 seers had become barred by limitation. Further, it was alleged that the remaining two instalments had not been delivered at all. The suit was instituted on 23. 11. 50. The claim for the last two instalments was within time on that date under Article 74 of the Limitation Act. The only ground on which Bal Singh resisted the suit was that he had delivered the entire grain due under the bond and nothing remained to be delivered. The trial court held that the entire grain had been delivered and dismissed the suit. Deep Singh had pleaded that he was living separately from Bal Singh and was not liable under the bond. The trial court held that Deep Singh was liable to the extent of the assets received by him from Bal Singh who had died during the pendency of the suit in the trial Court. That means that it was not satisfied that Deep Singh was liable under the bond but was only satisfied that Deep Singh was the legal representative of Bal Singh. In view of its finding on the point of deliver in the entire grain due on the bond, the suit was however dismissed. Against this decree, the plaintiffs filed an appeal in the court of the District Judge, Merta, who held that the plea taken by the defendants that the entire grain under the bond had been delivered was not true. He found that the last two instalments had not been delivered. Before him, it was argued that Article 75 of the Limitation Act applied and as there was default in payment of the first instalment time began to run under Article 75 from the date of the default and the suit became time barred before it was instituted. This contention was upheld and the suit was dismissed. Against this decree, the present second appeal has been field by the plaintiffs. The first contention on behalf of the plaintiffs is that in case of an instalment bond containing a default clause, that if default was made in the case of one instalment the whole sum would become payable with certain interest. Article 75 is no bar to a suit on the instalment bond itself either after or before expiry of the instalment period for the recovery of the instalments which a debtor has contracted to pay and which have not become themselves time barred under Article 47, the two remedies being co-existent and open to the creditor who has his choice either to wait and sue for the instalments in default under Article 74, or to enforce the default clause in a suit contemplated by Article 75. Reliance is placed on Ayyathurai vs. Ibramsa Rowther (1) in which a learned single Judge of the Madras High Court took this view and on Badri Prasad vs. Bhartu (2) in which a learned Judge of the Allahabad High Court took a similar view. A contrary view was taken by a Full Bench of the Nagpur Judicial Commissioner's Court in Vishwanath vs. Sadashiva (3) and by the Full Bench of the Patna High Court in Gokhul Mahton vs. Sheoprasad (4 ). With all respect, I am unable to agree with the view taken by the learned Single Judges in the Madras and Allahabad cases. The arguments advanced in those cases have been fully met in the judgment of Manohar Lall J. in the Patna case. I respectfully agree with the observations made in the judgment that the wishes of the obligee under the bond with a default clause or the manner in which he frames his plaint are superseded by the fiat of the legislature which has unmistakably laid it down that if you wish to recover money due or payable under an instalment bond with a default clause you must come within a prescribed period starting from the date of the first default unwaived. In the present case, there was admittedly a default on Jeth Sudi 1 Svt. 2001 when the first instalment became due but was not paid. Article 75 became applicable to the case as soon as a default was made and time began to run under it from the date of default. Its running could only be stopped by the obligee by waiving (the benefit of the provision of the default clause. The plaintiffs cannot get a decree for the last two instalments merely by showing that these instalments are within time under Article 74. They are only entitled to a decree if they succeed in proving that their suit is within time under Article 75. That they can only do by proving that the benefit of the default clause was waived before the claim became time barred under Article 75. In the plaint, it was pleaded that part of the first instalment was accepted by the plaintiff 15 days after it had fallen due. This allegation was not admitted by the defendants. As the plea of limitation was not taken by the defendants in the trial court no evidence was adduced by the plaintiffs to prove this allegation. The only relevant circumstance appearing from the evidence on record which might go to show that the plaintiffs waived the benefit of the default in the payment of the first instalment is the fact that they did not bring a suit for the recovery of the whole amount till after all the instalments had fallen due. This circumstance alone is not sufficient to prove waiver - see Raghunath Das Madan Gopal vs. Warlu Bapu (5), which was cited with approval in Shiv Dayal vs. Ramrikh (6 ). Upon the evidence on record, the suit of the plaintiffs was thus rightly dismissed as being barred by limitation. The next contention on behalf of the appellants is that the lower appellate court erred in allowing the defendant to raise the plea of limitation for the first time in appeal as this plea raised question of fact as well as of law namely whether there was waiver on the part of the plaintiffs within the meaning of Art. 75. It was argued that if the defendants had raised the plea of limitation in the trial court, the plaintiffs would have got an issue framed on the question of waiver and would have produced the necessary evidence to prove it. On behalf of the respondent, it was argued that it was the duty of the plaintiffs to have taken a specific plea of waiver in their plaint in order to show that the suit was within limitation under Art. 75. Reliance was placed on some observations made in Shiv Dayal vs. Ramrikh (6 ). Shiv Dayal's case was clearly a case falling under Art. 75 as the suit was brought for the recovery of the whole sum relying on the default clause before all the instalments had fallen due. On the other hand, the present suit was brought on 23. 11. 50 after all the instalments had fallen due. There is conflict of authority as has been pointed out above on the question as to whether such a suit is to be governed by Art. 74 or Art. 75. If the plea of limitation had been taken in the written statement the court or the plaintiffs would have ascertained from the defendant what was the basis of that plea and would have been told that the suit was barred under Art. 75. The plaintiffs would then have got an issue framed by the court on the point of waiver. O. 7 r. 6 C. P. C. is only applicable where a suit is prima facie barred by limitation. It was clearly applicable in Shiv Dayal's case (6) in which a suit was brought for the recovery of the whole sum before all the instalments had fallen due relying on the default clause and the only article of the limitation Act which could possibly apply was Art. 75 and the suit was prima facie barred under that article. In the present case on account of the conflict of authority referred to above, it cannot be said that the suit was prima facie barred by limitation. O. 6 r. 2 requires that every pleading shall contain a statement of material facts on which the party pleading relies for his claim. A party is not required to plead the law on which it relies. All that is required is that a party should raise material propositions of law and fact on which it relies at the time of framing issues (See O. 14 ). If the defendants had taken the plea of limitation in the written statement, the plaintiffs would have got an issue on the question of waiver framed by the court. Waiver is a mixed question of fact and law. Even if I were of the view that a party is required to specify the word 'waiver' in its plaint, this is a case in which an amendment of the plaint would have been permitted by me in second appeal in view of the conflict of authority on the question of law involved. On behalf of the respondent, it is argued that the only two facts on which the appellants rely in support of their plea of waiver are the acceptance of a part of an overdue instalment and forbearance to sue till all instalments had fallen due and that these circumstances are not sufficient to support a plea of waiver. Reliance was placed on the observations made in the Patna Full Bench case (4 ). With all respect, I am unable to agree with the view that acceptance of a part of an overdue instalment must in all cases amount to waiver. Whether or not there has been waiver in a particular case depends upon the facts and circumstances of that case. The two facts relied upon on behalf of the plaintiffs to prove waiver might in the present case be sufficient to constitute waiver. Whether they are or are not so can only be determined after parties have led evidence on the point. I accordingly allow the appeal, set aside the decree of the lower appellate court and remand the case to the trial 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.
(3.) LEAVE to file special appeal is granted in view of the importance of the questions of law involved. .;