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Rent Appeal No. 303 of 1980, decided on 13th November, 1987.

---O.XXXVII, R.3--Limitation Act (IX of 1908), Ss. 19 & 45--Suit for recovery--Limitation--Courts below dismissing suit on ground of limitation and proceeded on assumption that statement, contained in petitioner's Advocate application under S.45 of Evidence Act to the effect that expert opinion as to signature on letter of respondent was necessary to get an order for extension of limitation period under S.19 of said Act, was final and binding--Number of documents were brought on record by petitioner-plaintiff which had bearing on question of limitation but Courts below not referring to same for purpose of limitation--Order of Courts below set aside and case remanded to trial Court with direction to decide suit after hearing arguments on basis of material already on record on merits as well as on question of limitation.

--- Any misstatement on question of law made by a counsel, held, was not binding on his client.

Akhtar Ahmed Bhutto for Appellant.

Jan Mohammad Dawood for Respondent.

Date of hearing: 13th November, 1987.

This revision is directed against the judgments and decrees dated 17-11-1975 and 2-4-1980 passed by the learned IInd Senior Civil Judge, Hyderabad and learned IIIrd Additional District Judge, Hyderabad respectively in Suit No. 291 of 1970 and Civil Appeal No. 41 of 1976 respectively, dismissing the applicant's suit for recovery of Rs. 16,739.

(2) The brief facts leading to the filing of the above revision are that respondent had deposited a sum of Rs. 1,00,000 on 12-3-1960 in a fixed deposit account for a period of 4 years at 5% interest per annum payable to him by the applicant. The respondent sought overdraft facility in his current account No. 2519 to the extent of Rs. 1,00,000 against the security of the above-fixed deposit. The applicant filed the aforesaid suit after adjusting the fixed deposit amount against the overdraft for the above balance amount on 9-11-1970. It appears that the learned counsel for the applicant/ plaintiff filed an application under Section 45 of the Evidence Act for referring respondent's letter dated 14-9-1968 to the Government Hand-Writing Expert for opinion as to the signature in the above application it was stated that it was necessary to get an order for extension of limitation period under Section 19 of the Limitation Act. It appears that the above letter was referred to the hand-writing expert but no opinion was given for the reason that the signature was in Gujrati and the handwriting expert was not conversant with the Gujrati language. The suit proceeded and was eventually dismissed by the learned IInd Senior Civil Judge, Hyderabad by his above judgment dated 17-11-1975 on the ground of limitation. The aforesaid appeal namely, Civil Appeal No. 41 of 1976 was also dismissed by the aforesaid judgment dated 2-4-1980. The applicant has therefore filed this revision.

(3) I have heard the learned counsel for the parties and peruse the record. It appears that both the Courts proceeded on the assumption that the statement contained in the applicant's Advocate aforesaid application under Section 45 of the Evidence Act as to the, question of limitation was final and binding and that there was no requirement to refer to other documents which were brought on record, was leaving apart the above letter dated 14-9-1968. It may be mentioned that there are number of other documents which have been brought on record by the applicant in support of the suit claim and, therefore, the same should have been dilated upon by the learned trial Court as well as by the learned 1st Appellate Court as they may have some bearing on the question of limitation. It may also be observed that any misstatement on question of law made by a counsel is not binding on his client. I would, therefore, allow the revision and set aside the two Judgments and decrees under reference and would remand the case to the learned IInd Senior Civil Judge, Hyderabad with the direction to decide the suit after hearing the arguments on the basis of the material already on record on merits as well as on the question of limitation. In case any of the parties wishes to lead further evidence, the learned Senior Civil Judge may decide the above question in accordance with law. There will be no order as to costs.

M.Y.H./U-18/K Petition allowed.

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