The ground of exemption from the law of limitation need not be specifically claimed in the plaint as long as it is apparent on the face of the plaint.

C.S. Rajan, J.

The appellants who were the plaintiffs filed the suit for recovery of the money alleged to be due from the respondents-defendants. There are various payments made by the respondents to the appellants. The last date of such payment was 12.8.1982. Thereafter the respondents defaulted payment. The suit was filed on 24.8.1985. According to the appellants the suit was not barred by limitation on account of Ext. A 9

acknowledgment letter dated 27.9.82. By Ext. A9 acknowledgment, the respondents confirmed that the entire money due to the appellants would be paid shortly. The lower court dismissed the suit on the ground that the suit claim was apparently barred by limitation and that there was no specific pleading claiming grounds of exemption from the law of limitation as enjoined under R.6 O. VII of the Code of Civil Procedure. The above rule reads as follows:

"Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed; Provided that the Court may permit the plaintiff to claim exemption from the law of limitation on any ground not set out in the plaint, if such ground is not inconsistent with the grounds set out in the plaint". According to the lower court the plaintiffs have not specifically stated that the suit was not barred by limitation in view of the acknowledgement of liability as per Ext. A9. Since there was no pleading on this aspect, Ext. A9 could not be looked into by the court.

2. Paragraph 6 of the plaint stated as follows:

"6. The cause of action for the suit arose on the date on which logs were purchased and subsequently on 13.8.82 the date on which the amount became due and on 27.9.82, the date on which the defendants acknowledged payment at Thrikkakara South Village, within the jurisdiction of this Court".

3. According to the lower court the provision contained in R.6 O.VII CPC is mandatory and therefore, the suit was liable to be dismissed on the ground of limitation. The reasoning as mentioned above is that there must be specific pleading with regard to the ground of exemption from the law of limitation. The lower court has relied on a decision of the Allahabad High Court reported in S.S. Tewari v. G. Ganesh Prasad Misra (AIR 1978 Allahabad 17) for the above purpose, the relevant portion, as quoted in the judgment of the lower court, reads as follows:

"If the plaintiffs right of action is apparently barred under the statute of limitation, O.VII R.6 of the Code makes it his duty to state specifically in the plaint the grounds of exemption allowed by the Limitation Act upon which he relies to exclude its operation and if the plaintiff had got to allege in the plaint the facts which entitles him to exclude its operation these facts obviously must be in existence at or before the time when the plaint is filed. The provisions of R.6 of O. VIICPC are mandatory in nature and whenever a plain tiff wants to seek exemption from the operation of law of limitation, he must expressly state in the plaint the grounds on which exemption is sought for."

4. The learned counsel for the appellants submitted that the view of the lower court that there must be specific pleading with regard to exemption from the law of limitation under R.6 O. VII is not correct. It was further contended that under the proviso to the above Rule, the court may permit the plaintiffs to claim exemption from the law of limitation on any one of the grounds set out in the plaint, if such ground is not inconsistent with the grounds out in the plaint. According to the learned counsel, in fact the appall ants filed such a petition for amendment of the plaint taking up such additional grounds, but it was rejected on the ground that it was filed after the judgment.

5. The learned counsel also invited our attention to another ruling of the Allahabad High Court reported in P.C. Bhandari v. M/s. New Victoria Mills (AIR 1979 Allahab