A plea of waiver must be properly pleaded and proved. A mere acceptance of payment does not amount to a waiver.

DAVE, J.:-

This is an appeal by the plaintiff against the judgment and decree of the District Judge, Ganga-nagar, dated, 9-4-1951.

2. The facts giving rise to it are that the plaintiff-appellant brought a money suit for Rs.10,000/- in the Court of District Judge, Ganga-nagar on 4-1-1947 on the basis of a bond dated 25-5-1934 which is marked Ex.P.1. It was averred by him that Basti, who was father of defendants 1, 2, and 3 (Ramrikh Ganesha and Sureta) and Bakhta, who was father of defendants 4 to 7 (Panna, Parsa, Moola and Sheodayal) had executed the said document in his favour for an amount of Rs. 5700/- which were found outstanding against them on the date of its execution. The said amount was payable in 57 annual instalments beginning from Samwat year 1991 and ending in Samwat year 2047. Then it was stated that the defendants had paid the instalments from Samwat 1991 to Samwat 1997 and that they stopped payment thereafter. In this manner only Rs.700/-were paid and the principal) amount of Rs.5000/-still remained unpaid. According to the plaintiff, he was entitled to get interest at 12 per cent per annum according to the terms of the bond and, therefore, he added Rs. 5000/- for interest up to the date of the suit and prayed that a decree for Rs.10,000/- be passed against the defendants.

3. The defendants denied the execution of the document sued upon, and pleaded that they, had no knowledge if it was executed by their parents. They raised several other objections including that of limitation. The trial Court thereupon framed seven issues. It was found by that Court that the document Ex.P.1 was executed by Basti and Bakhta but the suit was dismissed on the ground of limitation. The Court came to the conclusion that the bond contained a default clause whereby the entire amount of the bond became payable on default of payment on the due date on which an instalment was to be paid. It also came to the conclusion that only five instalments were proved to have been paid to the plaintiff and the payments of sixth and seventh instalments were not proved. According to that Court, the payment of the sixth instalment was due on 14-1-1940 and since waiver was not proved by the plaintiff, the period of limitation for the entire amount commenced from that date. The period of limitation prescribed in money suits by the Law of Limitation prevailing in Bikaner was six years. The Suit in the present case was brought on 4-1-1947. The last date, according to the trial Court, on which the suit should have been filed was 13-1-1946 and, therefore, the claim was held to be time barred. It may be mentioned here that although the suit was originally filed in the Court of District Judge, Ganganagar, the case was decided by the Sub-Judge, Suratgarh because of the change of jurisdiction, of the Courts and it was dismissed by that Court on 26-8-1949.

4. The plaintiff went in appeal to the Court of District Judge, Ganga-nagar but with no success. Hence this second appeal.

5. The first question for determination before this Court is whether the plaintiffs claim was filed within the period of limitation. Learned Counsel for appellant has urged that if this Court also finds that the suit was time-barred, then he should be permitted to amend the plaint and, therefore, the next question to be decided is whether an amendment can be allowed at this stage.

6. In order to understand the arguments raised by the appellants learned advocate, it seems proper to set out the relevant portion (regarding the terms) of the bond on which the suit is founded. After saying that Basti and Bakhta were liable to pay Rs.5700/- to the plaintiff, it is written therein that they agreed to pay the said amount by annual instalments of Rs.100/- without any interest from Lohri of Samwat 1991 Vikrami to Lohri of Samwat 2047. It was further agreed that if the instalments were not paid annually on the date, then in case of that default, the creditor would be entitled to realise interest f