P.R. Raman, J.

This civil revision petition is directed against the judgment in A.S.66 of 1996 rendered by the Subordinate Judge, Cherthala, confirming the judgment of the Munsiff's Court, dismissing O.S. 436/1992 - a suit for return of non priced subscription paid under a chit.

2. The petitioner is the plaintiff in the suit. The allegation contained in the plaint is that he was a subscriber in two chitties which were conducted by the respondent/ defendant. One of the terms and conditions of the chitty was that if any subscriber who has not bid the chitty commits any default, the amount already remitted by him with 3% interest deducting the dividend will have to be given after six months from the date of termination of the chitty and if the foreman commits default and the chitty could not be conducted due to his default, the amount due to the subscriber who has not bid the chitty js to be given within three months from the date of default with 5% interest. Because of the default of the defendant the chitty could not be conducted and according to the plaintiff, he is entitled to the amount he has already remitted with 12% interest from the defendant. Petitioner - plaintiff has paid up to and inclusive of 15th installments - the last payment being on 23.4.1986 on which day he paid Rs. 1,000/- and obtained a receipt. Therefore he prayed for a decree for the amount already paid by him with 12% interest including dividend and other benefits.

3. In the written statement filed by the defendant, it is contended inter alia that the suit is not maintainable and is barred by limitation. The averment that the plaintiff has paid the 15th instalment is also denied.

4. The trial court formulated an issue regarding the maintainability of the suit and additional issue No. 4 regarding limitation.

5. As per the bye-law governing the terms and conditions of the chitty between the plaintiff and the defendant, if the subscriber who has not bid the chitty commits any default, the amount already remitted, by him is to be given with 3% interest after deducting the dividend, after the expiry of six months from the date of termination of the chitty. On the other hand, if the chitty could not be conducted due to the fault of the foreman, the subscriber is entitled to recover the amount after the expiry of three months including the dividend with 5% interest. According to the plaintiff, he could not remit the installments since the chitty had not been properly conducted by the foreman.

6. But according to the defendant, the plaintiff has not paid up to the 15th instalment and whatever amount he has paid are entered in the pass book which is still in the possession of the plaintiff and he has not paid any amount by receipt. The father of the defendant filed O.S. 278/1988 before the Alappuzha Munsiff's Court and in that case, the defendant claimed set off with regard to the transaction in this suit and hence he is not entitled to recover any amount. The Court below found that as per Clause 10 of the udampady if the foreman committed default, the amount already paid by the subscriber is to be returned after three months from the date of default with 5% interest and if so, the amount sought to be recovered became due as on 5th May, 1985 and since the period of limitation for the recovery of that amount is three years, the plaintiff had to file the suit before 5th May, 1988, but he has filed the suit only in 1992 and it is hopelessly barred by limitation. It was on that account, the suit was dismissed.

7. On appeal, the appellate court also considered the matter at length and it was found that the suit is barred by limitation. The appellate court found that there is absolutely no evidence to prove that the foreman discontinued the chitty transaction. But the chitty foreman did not bring any records which is in the custody of the appellant and in Ext. Al chitty bye-law the conditions show that if the chitty discontinued by the subscriber due to non deposit