IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN THURSDAY, THE 22ND DAY OF DECEMBER 2011/1ST POUSHA 1933 SA.No. 758 of 2000 (F) ====================== AS.58/1993 of SUB COURT, CHERTHALA OS.878/1991 of ADDL.MUNSIFF COURT,CHERTHALA ...... APPELLANT(S)RESPONDENT IN A.S./DEFENDANT IN OS: ================================================== C.K.VELAPPAN, S.O.LATE C.K.KUMARA PANICKER, AGED 63 (PEN NAME: SURENDRAKUMAR) RESIDING AT KONISSERIL, VAYALAR EAST, CHERTHALA. BY SRI.K.RADHAKRISHNAN,SENIOR ADVOCATE, BY ADV. SRI.SAJEEV KUMAR K.GOPAL, SRI.BINOY VASUDEVAN. RESPONDENT(S)/APPELLANT IN A.S./PLAINTIFF IN OS: =============================================== SRI.BAHULEYAN, PROPRIETOR, JYOTHISH PRINTING AND PUBLISHING, THURAVOOR. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22-12-2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.BHAVADASAN, J. ------------------------------------- SA No.758 of 2000 ------------------------------------- Dated this the 22nd day of December 2011 Judgment The defendant in OS No.878/91 before the Munsiff's Court, Cherthala, who suffered a decree at the hands of the lower appellate court, is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. Shorn off unnecessary details, the essential facts are that the plaintiff is the proprietor of a printing press by name Jyothish Printing and Publishing. On 31.8.1985, the defendant, who is a poet and social worker, entrusted with the plaintiff, the manuscripts of a poem written by him named “Vikasam” and requested him to print 1500 copies of the same, agreeing to pay Rs.5,500/- as printing charges. The defendant also paid an amount of Rs.1,000/- as advance. Thereafter, on 21.11.1988, the defendant also paid an amount of Rs.500/-. 1000 copies SA 758/00 2 of the printed materials were handed over to the defendant. But, inspite of repeated requests, the defendant did not pay the balance amount of Rs.4,000/- as agreed upon by him. Hence the suit for realisation of the plaint amount, with interest. 3. The defendant filed a written statement, resisting the suit. It was pointed out by him that in fact, money is due to him from the plaintiff towards money borrowed from the defendant. The suit is not maintainable either in law or on facts. Pointing out that the defendant has no liability towards the plaintiff, he prayed for dismissal of the suit. 4. On the above pleadings, issues were raised. Evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A7 from the side of the plaintiff. The defendant had Ext.B1 marked. 5. On an appreciation of the evidence in the case, the trial court came to the conclusion that the suit is barred by limitation and hence dismissed the suit. SA 758/00 3 6. The aggrieved plaintiff carried the matter in appeal as AS No.58/93 before the Sub Court, Cherthala. The lower appellate court, by a strange reasoning, found that the period of limitation is extended by an acknowledgment said to have been made by the defendant as per Ext.A3 document and went on to hold that the suit is within time. Accordingly, a decree was passed in favour of the plaintiff. It is the said judgment and decree that are assailed in this appeal. 7. Notice is seen issued on the following questions of law raised in the second appeal : 1. Whether the court below is justified in holding that the suit is maintainable ? 2. Whether the court below is justified in holding that the suit is not barred by limitation as found by the Munsiff's Court and in holding that the suit is within the time of limitation ? SA 758/00 4 3. Whether the court below is justified in holding that Exts.A3 and A5 are proper acknowledgment of liability and in enlarging the period of limitation ? 4. Whether the court below is justified in considering the acknowledgment of the debt to enlarge the period of limitation, especially when there is no pleading in the plaint regarding the same ? 8. The learned counsel for the appellant pointed out that the lower appellate court has grievously erred in law and on facts in holding that the suit is within time. There is no plea as such in the plaint regarding limitation and in the absence of a plea in this regard, the same could not have been looked into by the lower appellate court. Even otherwise, going by Section 18 of the Limitation Act, it could not be said that the recital relied on by the lower appellate court constitutes acknowledgment. According to the learned counsel, evidence shows that the printing work was completed on 31.08.1988 and hence the suit ought to have been filed on or before 31.08.1991. The suit was filed SA 758/00 5 only on 8.11.1991 and so, the suit is barred by limitation. The learned counsel went on to point out that the lower appellate court was not justified in reversing the judgment and decree of the trial court. 9. After having heard the learned counsel on both sides and going through the records, I find considerable force in the submissions made by the learned counsel for the appellant. The lower appellate court does not find fault with the trial court for having found that the date begins to run from 31.01.1988, but, at best, what the plaintiff could rely on was the part payment made in October 1988. The trial court has found that even accepting it as a part payment, extending the period of limitation, the suit was to be laid much before 8.11.1991, the date on which the suit is laid. These findings of the trial court are not taken objection to by the lower appellate court. The lower appellate court goes on to hold that by virtue of a word in Ext.A3 series of letters, there is SA 758/00 6 acknowledgment of liability. The word relied on in Ext.A3 reads as follows : “ . . .”” It is the above recital that is relied on by the lower appellate court to come to the conclusion that it is an acknowledgment of liability going by Section 18 of the Limitation Act and to hold that the suit is within the period of limitation. A bare reading of the provision indicates that there has to be acknowledgment of the liability and it has to be specific. The word “ ” (liability) contained in Ext.A3 cannot, by itself, cannot constitute acknowledgment of a liability at all and so, it could not be said that it can amount to acknowledgment of liability by virtue of Section 18 of the Limitation Act. SA 758/00 7 10. Further, the lower appellate court was also not justified in taking note of the evidence when there is no pleading to the effect that the period of limitation was extended. The lower appellate court was aware of the law that unless there is such a pleading in the plaint, it cannot be looked into. The lower appellate court felt that even in the absence of pleading, it can be looked into. That does not appear to be the correct law. 11. For the above reasons, this court is unable to accept the findings of the lower appellate court. There is no justifiable reason to interfere with the well considered judgment and decree of the trial court on the ground of limitation. Accordingly, this appeal is allowed. The judgment and decree of the lower appellate court are set aside and that of the trial court are restored. P.Bhavadasan, Judge SA 758/00 8 sta SA 758/00 9