ORDER
1. The unsuccessful second defendant before the lower appellate court has filed this Second Appeal.
2. The plaintiff filed a suit in O.S.No.487 of 1981 on the file of the District Munsif Court, Dharapuram for recovery of a sum of Rs.7,475 on the basis of a pronote Ex.A1 dated 3.7.1974, executed by the 1st defendant. On 2.7.’77 an amount of Rs.25 was paid towards the said pronote, which has been endorsed on the promissory note and marked as Ex.A2. To recover the said amount, the plaintiff filed the suit on 2.1.’81, stating that she could not file the suit within the period of three years of limitation, as the moratorium was in force. The promisee, the 1st defendant died. So, his legal representatives were impleaded as defendants 2 to 5.
3. The 2nd defendant filed a written statement, and the other defendants adopted the same. According to the defendants, the amount had already been discharged, and the suit is barred by limitation.
4. The trial court though held that the suit is not barred by limitation, dismissed the suit holding that the defendants had established the discharge of the suit debt. So, the plaintiff filed appeal in A.S.No.8 of 1988 on the file of the Sub-Court, Dharapuram. The lower appellate court found that the defendants had not established the discharge of the suit debt, and the suit is not barred by limitation. On the basis of the abovesaid findings, the lower appellate court decreed the suit by allowing the appeal. Hence this Second Appeal.
5. The substantial questions of law that were formulated in this Second Appeal are:
1) Whether on the admission of P.W.1 about the wealth and resources of the defendants, the suit could be held to be in time on the fact of the Moratorium Acts particularly when the specific plea of extension of limitation under the Act is not raised?
2) Whether the finding against the plea of discharge by payment to the plaintiff is sustainable when D.Ws., have given positive evidence and the plaintiff has not entered the witness- box?
6. The learned counsel appearing for the appellant has submitted that since the plaintiff has come forward with the specific plea in the plaint itself that the defendants are having extensive properties and earning enormous income, the plaintiff is not entitled to extend the period of limitation on the basis that the moratorium period under the Debt Relief Act was in force. In the present case, the pronote was executed on 3.7.’74 and an endorsement for payment of Rs.25 towards the pronote was made on 2.7.’77. So, the plaintiff ought to have filed the suit on or before 2.7.’80 but the same was filed on 2.1.’81.
7. In paragraph 5 of the plaint, the plaintiff has stated, to get the period of limitation extended, as follows:-
“5. The defendants are agriculturists entitled to the benefits of the Moratorium Acts applicable to the agriculturists. So even though three years have elapsed from the date of the endorsement viz., 2.7.1977 the suit is in time. Since the defendant owns extensive lands and gels enormous income he is not entitled to the benefits of Act 13 of 1980. So the suit lies against the defendants.”
8. To get the limitation extended, the plaintiff has come forward with the plea that the defendants are agriculturists entitled to the benefits of the Moratorium Acts applicable to the agriculturists, and so the plaintiff has filed the suit in time. But, at the same time, the plaintiff has come forward with the further plea that the defendants own extensive lands and get enormous income, and so they are not entitled to the benefit of the Act 13 of 1988. So, now it has to be decided, can the plaintiff sustain the suit as it has been filed beyond the period of limitation contemplated under the Indian Limitation Act. As staled already, the suit has to be filed on or before 2.7.1980. But it was filed only on 2.1.1981.
9. To claim that the suit is in time, the plaintiff is trying to take advantage of the currency of Temporary Debt Relief Acts under which filing of civil suits were barred. But, such bar will apply only to the “debts” and against the “indebted persons” as defined under those Acts. Even if it is not so the plaintiff is entitled to exclude the time for limitation, if she believed in “good faith” that such Acts could apply and she was refrained from instituting the suit.
10. Under the Temporary Debt Relief Acts, “good faith” has been defined as it had the meaning assigned to it in clause (22) of Sec. 3 of the General Clauses Act 1897. The “good faith” which is a mental state negativing dishonesty having no relation to negligence or want of care. So, the said definition lays stress on the one especially of honesty only irrespective of negligence.
11. While considering the said definition “good faith”, the Apex Court in the decision in Bhiwandi & Nizampur Municipality v. K.S. Works, , has held as follows:-
“13. The Bombay, as also, the Central, General Clauses Acts, help only in sofar as they lay down that negligence does not necessarily mean mala fides. Something more than negligence is necessary. But these Acts say “honestly” and so, for the interpretation of that word, we have explained the legal meanings above.
14. In the facts of this case we hold that the defendant was aware of possible harm and yet cared to do nothing about it. The action was, therefore, reckless, and therefore in the eye of law mala fide, and therefore unprotected by Section 167 of the Act.”
12. On the basis of the abovesaid discussion, we have to deal with the case on hand, whether the plaintiff is entitled to extend the limitation period on the basis of the averments in the plaint. In view of Sec. 3 of the Limitation Act 1963, every suit, subject to Sections 4 to 24 of the said Act, filed after the prescribed period shall be dismissed, although the limitation has not been set up as a defence. So, the Court has no choice except to reject the suit if such a suit is filed beyond the period of limitation.
13. In the present case, the suit was entertained on the basis of the averments made in paragraph 5 of the plaint, though the suit was filed beyond the period of limitation prescribed under the said Act.
14. The plaintiff has come forward with vague averment that the defendants are agriculturists, entitled to the benefit of the Moratorium Acts, and so the suit was filed after three years, and the same is filed in time. Now we have to consider, whether the suit was not filed in time on “good faith”, that the Temporary Debt Relief Acts were applicable to the defendants during the relevant period. The courts below have held that the suit was not barred by limitation only on the basis of the first portion of para 5 of the plaint. They have failed to appreciate the further averment made in the same paragraph, and the evidence of P.W.1 himself. The said averment, and the evidence clearly establish that the plaintiff has not filed the suit in time on “good faith” that the said Acts would apply to the defendants. When the plaintiff was able to come forward with the specific plea that the defendants are having extensive lands and getting enormous income, which is supported by their own evidence, the averments made in paragraph 5 for the purpose of getting the limitation period extended, have to be taken as if they had been made with
dishonest intention for the purpose of entertaining the suit. The plaintiff has not come forward with the specific plea that she was on the bona fide intention that the said Acts would apply to the defendants, and so she did not file the suit within the time. But, on the other hand, she has come forward with the specific case that the said Acts would apply to the defendants. The said assertion is contrary to the case of the plaintiff herself. Hence the courts below are not correct in holding that the plaintiff is entitled to take advantage of the extended period of limitation, and so the judgment and decree of the lower appellate court in this regard cannot be sustained in law.
15. Though the learned counsel appearing for the appellant has submitted that the lower appellate court is not correct in holding that the defendants had not discharged the debt, I am not inclined to interfere with the said finding as the lower appellate court has reversed the finding of the trial court on the basis of the evidence available on record.
16. In view of the foregoing discussion, the judgment and decree of the lower appellate court are set aside, and the plaintiff is not entitled to any relief against the defendants, as the suit has to be dismissed as time-barred. Accordingly, this Second Appeal is allowed. No costs.