1. This Second appeal arises out of a money suit brought by Ramuniraja Mouli against Thodapnure Manayya which was decreed in part by the trial court but was wholly dismissed by the Appellate Court. Plaintiff's case was that he and the defendant are traders, that the detendant's father and thereafter the defendant himself had money dealings with him and that as a result of accounting a sum of Rs. 4,5247-was found due which the defendant in spite of demand failed to pay.
The defendant admitted that there were dealings between his father and the plaintiff's firm but denied his liability to any extent and raised several objections as to the maintainability of the suit. His objections are that as there were three partners in the plaintiffs firm the suit by the plaintiff alone is not maintainable, that it was barred by limitation and that in any event he is not entitled to interest as there was no agreement in that behalf.
Though the suit as brought related to several items, having regard to the fact that some of these items were evidently time-barred at the time of trial, plaintiff limited his claim only to four items which are said to be the advances made between the period 1-5-1948 and 21-10-1949. The learned Sub-Judge found that but for the first item which is Rs. 2000/- and was advanced on 1-5-1948 all other items were in point of fact advances of earlier dates, and thus barred by limitation. He therefore decreed the suit only to the extent of Rs. 2000/-.
2. The District Judge in appeal came to the conclusion that even this item having regard to the language in which it was couched is barred by limitation and thus he dismissed the whole suit. The plaintiff has therefore come in Second appeal to this court.
3. The controversy in this second appeal mainly centres round item No. 1. Item's 2 to 4 seem to be placed beyond dispute in view of the concurrent findings of the courts below and even withdrawal of the appeal filed in that behalf. As to item No. 1, having regard to the language used, we have no hesitation to hold that the trial court was right in holding that the amount of Rs. 2000/- was advanced on 1-5-1948 to Gampa Lakshmayya, the clerk of the defendant as per the instructions given by the defendant the previous night.
The entry in the account book in this behalf is in Telgu and in our opinion capable only of that construction. The defendant's contention has been that though this entry appears to have been made on 1-5-1948 the amount must have been paid if at all to Gampa Lakshamayya on the previous night. Gampa Lakshmayya was examined as a witness: but the defendant did not choose to put a single question whether the amount was paid to him in the night.
Much capital has been made of his statement to the effect that the said entry was not made in his presence. Even so that would not give lie to the plaintiff's contention, nor does it necessarily follow therefrom that the amount was not paid the day on which it was entered in the account book. Read by itself the entry would support rather than rebut the contention of the plaintiff.
In the absence of any evidence to the contrary, there is no reason why we should assume the payment to have been made on a previous night and entered the nest morning under that date. In our opinion, this payment must be held to have been made on 1-5-48, the date on which it was entered.
4. The question of limitation does not end here for the suit that should have been instituted in the normal course on 1-5-1951 was in fact instituted on 1-6-1951. Plaintiff in his plaint categorically stated that as the court was closed for summer recess from 1st of May, the plaint was filed on the re-opening day i.e., 1-6-1951.
The defendant in his written statement did not expressly or by necessary implication deny the fact that there was summer vacation on account of which the court was closed. All that he averred in paragraph 6 was that the alleged date oil cause of action in the plaint is wrong and having regard to the averments in the plaint, the suit is wholly barred by limitation.
There was not even a suggestion however remote that in spite of vacation the court was for any period kept open for receiving the plaints. The entire record of the case will show that it never occurred to the plaintiff that such a plea could possibly be raised on the facts of the case. As a matter of fact the proceedings of the trial court dated 5-12-1951 would suggest that it was admitted on all hands that in the summer vacation the civil work is kept closed.
If that were not so an issue would have been raised and the matter would have been inquired into. In fact, even in his judgment the trial Judge has observed that in as much as the civil court remained closed in the month of May the suit filed on 1st of Tune is within time. Even in appeal, the plea of limitation was not based on the fact that the court was kept open for purposes of filing the plaints during the month of May.
Such a ground has been raised for the first time in this court in the Second appeal and probably because such a ground formed the subject matter of decision by this court recently. It should however be remembered that even a legal issue which is based on question of facts which require proof cannot be permitted to be raised for the first time in the court of last resort.
Learned counsel relying on the decision in Jagapati Rao v. Krishnaji Gopal Naik 1957-2 Andh WE 217 (A) has argued that by virtue of circular No. 3 dated 19-5-1947 the courts in the State were kept open during the vacation for the purpose of filing the plaints and hence the suit in question is evidently beyond time. The principle laid down in that case is indeed unexceptionable and it is to this effect, When the notification specifically directs that the courts should be kept open for filing purposes, the court notwithstanding the summer recess cannot be deemed to he closed for that purpose within the meaning of Section 4 of the Limitation Act. So, then what we have to consider is whether the court was open for filing purposes during the summer vacation.
As already observed there is no material on record in support of such contention evidently because such a point was never raised. However, reliance is placed on the construction put on circular No. 3 dated 19-5-1947 in the above cited case. That circular must he construed having regard to the circumstances in which it was issued. A person having failed in the Munsif's court in his attempt to file a plaint so that he may get urgent interim orders during summer vacation moved the High Court on its administrative side for directions in view of the urgency of his case and the High Court therefore issued the said circular in order to clarify the position that when the civil courts are permitted to entertain and dispose of urgent important applications during the summer vacation there is no reason why the plaint should not be entertained for this purpose.
It is manifest from this circular that in the summer vacation only urgent important civil work is permitted to be transacted, that though acceptance of plaints during this period is not a normal feature, yet there is no reason why they should not be entertained when the urgency and importance of the relief warrants the same. Not only the clear language of the circular is susceptible of this construction but also the circumstances under which and the purpose for which it was issued warrant such an interpretation of the circular.
It is therefore clear that the plaints save in matters where urgent orders were to be obtained were not permitted even under the circular above referred to be entertained during the summer vacation. It is not the case of the parties that any urgent orders were sought to be obtained during vacation so that the plaint could have been presented irrespective of holidays. It follows therefore the court was not open for the purpose in question during summer vacation and the plaint filed on l-6-1951 is within time.
5. It is then argued that as the plaintiff has obtained no licence even though he has money lending business, the suit ought to have been dismissed on that basis. It will be noticed that the issue as to licence was framed only in view of the mandatory provisions of the Money Lender's Act. The defendant did not raise any such plea in his written statement. The plaintiff in his plaint had clearly stated that the parties are traders and the money dealings were for purposes of or in connection with the trade.
The trial court found on evidence that the dealings between the parties were not in the nature of a loan but were transactions between one merchant and the other and that the provisions of the Money Lender's Act did not apply. The Appellate Court was not called upon to decide this issue as the suit in its opinion failed on the ground of limitation. Learned counsel argues that in order that the amounts advanced may be excluded from the definition of 'loan' they should be such as have been advanced in the ordinary course of business and in accordance with the trade usage and that there is no such evidence on record.
As already observed the trial Judge had in view of this provision on the evidence adduced found that the suit transactions are not loans within the meaning of the Act. We have no reason to differ from this conclusion in view of the pleadings and the material on record. We therefore cannot give effect to the argument advanced.
6. In the result, this appeal must be allowed with costs. The Judgment and decree of the lower appellate court are set aside and those of the trial court restored.