Fakir v Issaji (Civil Appeal No. 28 of 1941) [1942] EACA 42 (1 January 1942)

## APPELLATE CIVIL

BEFORE THACKER, J. (with Chief Kathi as an assessor)

MOHAMED FAKIR, Appellant (Original Defendant).

SULEMANJI ISSAJI, Respondent (Original Plaintiff)

## Civil Appeal No. 28 of 1941

Civil Procedure Ordinance, 1924—Limitation Ordinance, 1934, Sections 5 (1) and 40—Defence of Limitation to be pleaded specifically—Proof of promissory note—Admission of validity by advocate.

The facts sufficiently appear from the judgment.

Held $(2-4-42)$ .--(1) That the procedure which should have been followed in the lower Court which is a Muslim Subordinate Court, is that contained in Civil Procedure Ordinance, 1924.

Baraka binti Said Bakmishi v. Salim bin Abed Basawadi, 20 K. L. R. Pt. I, \*p. 34. followed.

(2) That where the Limitation Ordinance, 1934, is put forward as a defence, it is<br>not sufficient to raise it orally at the trial for the first time. By the provisions of section 40 of the same Ordinance the defence of limitation must be pleaded specifically. This pro-<br>vision applies equally to a Mohammedan defendant in a Muslim Subordinate Court as it does to other persons.

(3) That where, in a civil suit, an advocate admits on behalf of his client the correctness or validity of a promissory note, there is no need of formal proof of the document.

Appeal dismissed with costs.

Christie for appellant.

A. B. Patel for respondent.

JUDGMENT.-In the Court below the plaintiff sued upon a promissory notefor Sh. 136, dated 3rd March, 1932.

No defence was filed in the Lower Court but the defence of limitation was put up orally by defendant's Vakil in the Court below. The Kathi disregarded this oral plea of limitation and gave judgment for the plaintiff with costs.

It is to be noted that the Kathi's judgment reads as follows: "There is no defence in this case save the point of Limitation. Defendant admits through his Vakil that he is indebted to plaintiff in the sum of Sh. 136 and signed the promissory note, Exhibit 1. I see no reason why the defendant should not pay the amount claimed. Judgment for plaintiff for Sh. 136 with costs. Sd. Mamun bin Suleiman, 15th November, 1941."

Mr. Patel argues that the plea of limitation must be specifically pleaded.

Both advocates agree that the procedure which governed the case or should have governed the case in the Lower Court was the Civil Procedure Ordinance. This would accord with my decision in Civil Appeal 11 of 1939.

Mr. Christie relies on the defence of limitation here and cites the Limitation Ordinance, 1934, Section 5 (1).

Mr. Patel agrees that this section of the ordinance applies, but relies on section 40 which says that the provisions of the Limitation Ordinance relied upon.

Reported p. 34 ante.

must be specifically pleaded and also relies on Order 6 Rule 5. He submits that the Kathi was correct in ignoring the oral plea of limitation. I am afraid this argument of Mr. Patel is fatal to this appeal. The limitation ordinance and section should have been specifically pleaded and the defendant could not raise it orally at the trial for the first time.

Mr. Christie, however, takes the further point that no evidence was led in: the case and that the promissory note should have been formally proved. This point has given me some trouble and I have some doubt, at least, whether the promissory note should not have been proved formally. However, the Kathi says in his judgment that the defendant's Vakil admitted the promissory note and that the only point was the point of limitation.

The promissory note was made an exhibit, and a copy given to defendant's. Vakil and the record tends to show that this was done by agreement of both Vakils, without evidence. There is a note by the Court as follows: —"Badi Wakil for defendant states he (defendant) has no more arguments. He admits that there is the signature of the defendant for the amount claimed on promissory note." It would appear from the record that there was an agreement to dispense with formal proof of the promissory note. It is to be noted further that this new point is not taken in the Memo of Appeal.

Mr. Christie says that there was no trial and submits that a native should. be allowed the dispensation of a new trial and an opportunity to put in the special plea of limitation. I fear that this would be a dangerous precedent to create, to allow a litigant even though he be a native to have two opportunities. of properly presenting his case.

I am afraid that I must hold that Mr. Patel's objection that the Limitation: Ordinance should have been pleaded is correct, and that as to the second point. it seems that formal proof of the promissory note was dispensed with by agreement of the defendant's Wakil.

The result is that this appeal must be dismissed with costs.