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Surajmal Dagduamji, Shop Vs. Shrikisan Ramkisan - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai High Court
Decided On
Case NumberA.T.A.D. No. 970 of 1964
Judge
Reported inAIR1973Bom313; (1973)75BOMLR186; 1973MhLJ190
ActsCode of Civil Procedure (CPC), 1908 - Sections 100; Limitation Act, 1908 - Sections 14; Partnership Act, 1932 - Sections 69; General Clauses Act, 1897 - Sections 3(22)
AppellantSurajmal Dagduamji, Shop
RespondentShrikisan Ramkisan
Appellant AdvocateR.V. Jahagirdar and ;S.N. Deshpande, Advs.
Respondent AdvocateRaghavendra A. Jahagirdar, Adv.
Excerpt:
a) the case debated on whether the inference drawn from finding of facts could be interfered in the second appeal under section 100 of the civil procedure code, 1908 - it was held that if the inference was based on the basis of perverse or erroneous finding of facts, then it could be interfered by the court in the second appeal ; b) the case debated on the interpretation of the statutes related to the limitation under section 14 of the limitation act, 1908 - it was held that the statutes should be interpreted in such a manner so that the same could result in saving the proceedings and should not result in putting a bar on the proceedings ; c) the case debated on the status of the suit under section 14 of the limitation act, 1908, where the suit was instituted in contravention of the.....1. a short but interesting question about the applicability of section 14 of the indian limitation act, 1908, arises in this second appeal.2. the appellant before me is the original defendant in regular civil suit no. 245 of 1961 and the respondent to this second appeal is the original plaintiff. the said suit was tried by the learned joint civil judge, junior division, at malegaon, who dismissed the same with costs. being aggrieved by the order of dismissal, the plaintiff preferred an appeal to the district court at nasik, which was numbered as civil appeal no. 11 of 1963. the defendant had also preferred cross-objections which were heard along with that appeal by the learned district judge, nasik, who by his order dated 15th june 1964 allowed the appeal and set aside the decree of the.....
Judgment:

1. A short but interesting question about the applicability of Section 14 of the Indian Limitation Act, 1908, arises in this second appeal.

2. The Appellant before me is the original Defendant in Regular Civil Suit No. 245 of 1961 and the Respondent to this second appeal is the original Plaintiff. The said suit was tried by the learned Joint Civil Judge, Junior Division, at Malegaon, who dismissed the same with costs. Being aggrieved by the order of dismissal, the Plaintiff preferred an appeal to the District Court at Nasik, which was numbered as Civil Appeal No. 11 of 1963. The Defendant had also preferred cross-objections which were heard along with that appeal by the learned District Judge, Nasik, who by his order dated 15th June 1964 allowed the appeal and set aside the decree of the trail Court dismissing the Plaintiff's suit. The Defendant was ordered and decreed to pay to the Plaintiff Rs. 6, 536/12/- along with proportionate costs and future interest on Rs. 4,000/- from the date of suit till realisation. The Defendant's cross-objections were dismissed with no order as to costs. Being aggrieved by this decision, the Defendant has preferred this second appeal to the High Court.

3. In order to understand and appreciate the point involved, a few facts may be stated : The Plaintiff Messrs. Shrikisan Ramkisan is a partnership firm, and Regular Civil Suit No. 245 of 1961 was filed by the firm through one of its partners, Shrikisan Mulchand. This firm is doing 'Sari Adat' business at Malegaon. The Defendant is a cloth merchant from Baramati and had dealings with the Plaintiff-firm sought to recover from the Defendant the aggregate amount of Rs. 6,546/12/-. This amount was made up of several items. It is not necessary for the purposes of this second appeal to discuss the nature of the claim but it would be sufficient to state that the trial Court found that the Plaintiff was entitled to recover from the Defendant the full amount but that the suit was liable to be dismissed as barred by the law of limitation. In order to understand this point of limitation, it must be mentioned that the suit was instituted on 17th October 1961 by the Plaintiff-firm claiming to be duly registered under the Indian Partnership Act. In the suit the Plaintiff firm had claimed exception of the period between 7th March 1961 and 17th October 1961 as the period during which the Plaintiff-firm was prosecuting another civil proceedings viz. Regular Civil Suit No. 54 of 1961. This suit filed on 7th March 1961 was dismissed with costs by the learned Civil Judge, Malegaon, on 17th October 1961 filed by the Plaintiff-firm itself. The Plaintiff-firm had described itself as a registered partnership firm in the plaintiff filed in Regular Civil Suit No. 54 of 1961. On 31st August 1961 the Defendant filed his written statement in which a plea was taken that the Plaintiff was required to prove strictly that it was a duly registered firm under the Indian Partnership Act, and that if the Plaintiff's suit was liable to be dismissed with costs. On 17th October 1961 a Purshis was filed by the Plaintiff's Advocate (marked as Exhibit 45 in the subsequent suit) which stated that the Plaintiff-firm was not duly registered under the Indian Partnership Act and that in view of this fact the suit may be dismissed by the Court. It appears that on the previous day an application for registration of the Plaintiff-firm had been made to the Registrar of Firms having jurisdiction in the area, and on such registration having been done, Regular Civil Suit No. 245 of 1961 was filed on the next day by the plaintiff immediately after obtaining the dismissal of the earlier suit.

4. The trial Court held that the Plaintiff was not entitled to the exclusion of the time taken in the earlier proceeding viz. Regular Civil Suit No. 54 of 1961. According to its view, the filing of the former suit was contrary to provisions of Section 69(2) of the Indian Partnership Act and the same could be regarded as a suit instituted contrary to the provisions of law. Accordingly, in the opinion of the trial Court, Section 14 of the Indian Limitation Act had no application. It also came to the conclusion that the Plaintiff could not be said to be prosecuting the earlier proceeding viz. Civil Suit No. 54 of 1961 diligently or in good faith. It may be mentioned here that an acknowledgment had been made by the Defendant on 12th March 1959 and it was held that the time began to run against the Defendant from that date. The suit filed on 17th October 1961 would obviously be beyond time unless the Plaintiff was held entitled to the exclusion of the period between 7th March 1961 and 17th October 1961 which he had claimed.

5. The learned District Judge differed from the views expressed by the trial Court on the application of Section 14 of the Indian Limitation Act as also on the question whether the Plaintiff could be said to have been conducting the earlier proceeding in good faith and with due diligence. According to the learned District Judge, all the three essential requisites for the application of Section 14 (1) were duly satisfied and that the Plaintiff was entitled to exclusion of the period of pendency of the former suit viz. the period between 7th March 1961 and 17th October 1961, with the result that the Plaintiff's claim in suit was held to be within time. Incidentally it may be stated that the learned District Judge held that the Plaintiff was not entitled to the sum as determined by the trial Court and disallowing an amount of Rs. 10/- he passed a decree for Rs. 6,536/12/- in the Plaintiff's favour.

6. Before discussing the point raised in this second appeal, which must necessarily be a point of law, the contents fo the Purshis (Exhibit 45) may be fully indicated since it would show the circumstances under which the Plaintiff-firm came to describe itself in the earlier proceeding as duly registered. The purshis states that at the time of institution of the suit the Plaintiff's understanding was that the Plaintiff-firm is duly registered under law. However, according to the purshis, three days before ht Purshis was filed the Plaintiff's partner came to learn that the registration which had taken place was under Section 26(A) of the Indian Income-tax Act and not under the Indian Partnership Act. The Purshis finally states that upon coming to know this fact the Plaintiff-firm has been got duly registered under the Indian Partnership Act on 16th October 1961. After the Plaintiff filed this Purshis, the earlier suit, viz., Suit No. 54 of 1961 was dismissed with costs in view of the bar of Section 69(2) of the Indian Partnership Act.

7. In order to consider whether the Plaintiff could be said to have conducted the earlier proceeding with due diligence or have acted in good faith throughout, the explanation given by the Plaintiff's partner in his evidence would be material. The learned District Judge has fully accepted this evidence. In this evidence the Plaintiff's partner has given testimony to the effect that when he instituted the former suit, he was under the impression that the firm was duly registered as required by law, because to his knowledge it was registered under Section 26(A) of the Indian Income-tax Act. In view of the plea taken in the written statement (Exhibit 44) filed on 31st August 1961 there was an occasion for the Plaintiff's pleader to inquire from the Plaintiff's partner whether the firm was registered under the Indian Partnership Act. The Plaintiff's partner, according to his testimony, replied to this inquiry from his Pleader stating that he would look into the matter and procure the certificate in question from his pleader at Nasik. The certificate was obtained from the Pleader at Nasik and when this was scrutinised, it was found that the registration made in the past was only a registration under Section 26(A) of the Indian Income-tax Act. It is in these circumstances that an application for fresh registration under the Indian Partnership Act was made on 16th October 1961, and on the following day the Purshis (Exhibit 45) was tendered to the Court, after which the Court proceeded to dismiss that suit with costs. This evidence has been accepted in toto by the learned District Judge and on this evidence he has come to the conclusion that the Plaintiff could not be said to be conducting the earlier proceeding without due diligence or could be said to have shown want of good faith in the conduct of such proceedings.

8. I have referred to the contents of the Purshis (Exhibit 45) and to the evidence given by the Plaintiff's partner at some length because of appeal taken on behalf of the Respondent by Mr. Raghavendra A. Jahagirdar. The plea was that this finding of the learned District Judge that the Plaintiff was conducting the earlier proceeding with due diligence and in good faith is a finding of fact which the Appellant is not entitled to question in this second appeal. In this connection he referred me to two authorities to which immediate reference may now be made.

9. The first of these authorities is the decision of a single Judge of the Madras High Court in Raghavayya v. Vasudevayya Chetty. AIR 1944 Mad 47. It was held in this case (which was a second appeal) by the Madras High Court that the benefit of Section 14 of the Indian Limitation Act, 1908, could be given to a party which has acted on a mistaken advice given by his Advocate. It was further observed that whether the Advocate has shown due care and attention is a question of fact to be decided on the evidence adduced in any particular case, and whether the lower Court's decision on this point be right or wrong, it cannot be upset in a second appeal on the ground that he has transgressed such a rule of law. A similar view has been taken by a Division Bench of the Calcutta High Court in Haji Mumtajuddin v. Debendranath, : AIR1959Cal78 . This was also a second appeal which was being heard by the Division Bench. In that matter the Plaintiff had purchased certain land from the Collectorate of 24 Parganas on a sale of arrears of land revenue. When he sought to take delivery of possession, he was resisted by some persons on the ground that the land really purchased was a different land. Certain mutation proceedings were thereafter taken. The land was demarcated and thereafter the Plaintiff filed a suit for declaration of his title, for recovery of profits. One of the pleas taken in the written statements filed by the contesting Defendants was that the Plaintiff's suit was barred by the law of limitation; and it was the admitted position that that if the Plaintiff was held not entitled to a deduction fo the period during which the suit remained pending in the Court of the Munsif where it had originally been filed, the claim of the Plaintiff must be held to have become barred by adverse possession. It was urged on behalf of the Appellant (Original Defendant) before the Division Bench that the Plaintiff had originally deliberately under-valued the suit and hence could not be said to have prosecuted his suit in the Court of the Munsif with due diligence and in good faith. The lower appellate Court held that the time during which the suit remained pending in the Court of the Munsif should be excluded for computing the period of limitation, holding the suit was being prosecuted there in good faith and that the Munsif was unable to entertain the suit for want of pecuniary jurisdiction. On this argument the Division bench observed : 'We cannot say that this contention (regarding deliberate under-valuation) of Mr. Begchi is without any force, but the question whether the Plaintiff-respondent acted in good faith or not is a question of fact and as the lower appellate Court has decided this question in favour of the Plaintiff-respondent after adverting to the evidence bearing on it we are not inclined to allow Mr. Bahchi to raise this contention in second appeal..............'

10. Relying upon these authorities Mr. Raghavendra A. Jahagirdar on behalf of the Respondent (original Plaintiff) submitted that in this second appeal the Appellant was not entitled to question the finding of the lower appellate Court which was that the Plaintiff had prosecuted the former suit in good faith and with due diligence.

11. Now, with respect to the learned Judges of the Madras and the Calcutta High Courts, I am of opinion that although the finding whether the Plaintiff has or has not prosecuted the earlier proceeding in good faith or with due diligence is one dependent upon the appreciation of facts and evidence it is not a finding of act but rather of proper inference to be drawn in law form the findings of fact. It that be so, then it is a question which can be one into a second appeal. It is true that it would not be proper for me to substitute my own approach for that of the lower appellate Court. However, in my opinion, it would be permissible for me to come to a different conclusion if I hold from the facts as held proved by the lower appellate Court that the conclusion that the Plaintiff was prosecuting the earlier suit in good faith and with due diligence is perverse or so erroneous that if calls for interference in second appeal.

12. With this clarification I would now proceed to consider the four points raised on behalf of the Appellant in this second appeal. These four points may be briefly summarized as follows :- (1) The earlier proceeding viz. Civil Suit No. 54 of 1961 was instituted in contravention of the provisions of Section 69 of the Indian Partnership Act, that such a suit or proceeding must be deemed to have no existence at all in law and, therefore, the period during which such proceeding was pending could not be excluded under Section 14 of the Indian Limitation Act. (2) The defect from which the earlier proceeding viz. Reg. Civil Suit No. 54 of 1961 suffered viz. want of registration of the Plaintiff-firm under the Indian Partnership Act was not a defect of jurisdiction or other cause of a like nature' within the meaning of Section 14 of the Indian Limitation Act. (3) The Plaintiff could not be said to have instituted and prosecuted the earlier proceeding viz. Reg. Civil Suit No. 54 of 1961 with due diligence or in good faith inasmuch as the proceeding instituted in contravention or reckless disregard of the statutory provision viz. of Section 69 of the Indian Partnership Act 1932, cannot be considered to have been instituted in good faith or with due diligence. (4) The attention of the Plaintiff was drawn to the defect in his suit by the Defendant by pleading in the written statement which was filed on 31st August 1961. Even when the attention of the Plaintiff's partner was drawn to this defect, he took as many as 47 days (the number of days between 31st August and 16th October 1961) to rectify the defect and to file a proper suit after such rectification. It was urged in the lower appellate Court that the Plaintiff was not entitled at any rate to the exclusion of this period of 47 days. In this Court it was submitted that the Plaintiff must show that throughout the entire period when the earlier proceeding was pending he was acting with due diligence and good faith, and that if it can be shown that the Plaintiff was not acting with due diligence or in good faith even during a part of this period the Plaintiff would not be entitled to any exclusion at all.

13. These four points may now be considered one by one. But before doing so, some observations may be made regarding the proper approach to the questions arising in this second appeal. It appears to be now well settled that Section 14 of the Indian Limitation Act, 1908, must be liberally construed (see : 1. Ramdutt Ramkissen Dass v. E. D. Sassoon & Co. AIR 1929 PC 103; 2. Venkamma v. Parthasarathi AIR 1926 Mad 1081 and 3. Maneklal Kalidas v. Shivlal Dayaram, 40 BomLR 1169 : AIR 1939 Bom 26 In Balkrishna Rajaram v. Baijnath Girdharilal. AIR 1939 Nag 150, it has been observed that the provisions of the Limitation Acts should be construed so as to save rather than bar a proceeding. With these observations as to the proper approach which must be adopted. It will now proceed to consider the four points canvassed in this second appeal on behalf of the Appellant.

14. Section 69(2) of the Indian Partnership Act 1932, reads : 'No suit to enforce a right arising from a contract shall be instituted in any court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm.' It was submitted that no suit to enforce a right of a firm could be instituted unless the firm was registered and the partners suing shown as partners in the Register of Firms. It was contended that this clearly implies that any suit or proceeding instituted without necessary registration must be deemed to be no proceeding or a non-existent proceeding and that in this view of the matter the period taken for the conduct of such non-existent proceeding cannot be excluded at all. Mr. R. V. Jahagirdar on behalf of the Appellant in this connection cited three authorities viz. Sri Baba Commercial Syndicate v. Channamasetti Dasu, : AIR1968AP378 , Govind Sadashiv Pathak v. Sadashiv Shivrao Nisal, : AIR1955Bom93 and Shriram Sardarmal v. Gourishankar, : AIR1961Bom136 . In my opinion, none of these three decisions lays down any principle such as the one which was being canvassed by the learned Advocate for the Appellant. In : AIR1968AP378 , the High Court of Andhra Pradesh was considering the effect of the bar of Section 69 of the Indian Partnership Act, 1932. It observed that this section barred institution of a suit to recover a claim due to a partnership which was unregistered on the date of institution of the suit. It was considering the plea of res judicata and held that the dismissal of the earlier suit by or on behalf of the unregistered firm could not operate as res judicata to the claim made in subsequent suit after curing the defect, since the earlier proceeding was not decided on merits. This decision does not laid own that the earlier proceeding did not have an existence in law. Similarly, in : AIR1955Bom93 the Court was considering the claim to exclude the period of time taken in earlier proceeding viz. for execution of an ex parte decree. It was observed that this ex parte decree had been set aside and the application was to execute the decree which was non-existent. This decision does not seem to deal with a suit instituted in contravention of the requirements imposed by Section 69(2) of the Indian Partnership Act and I do not see how it has any bearing on the question being canvassed before me on behalf of the Appellant. The very same observation is required to be made as regards the decision in : AIR1961Bom136 , where it is observed that a suit instituted on behalf of an unregistered partnership must be immediately dismissed. As a matter of fact it is observed that when this defect is brought to the notice of the Court, the Court must pass an order in the proceeding viz, an order of dismissal. This does not mean that the Court proceeds upon the footing that there is no proceeding. As a matter of fact this last authority instead of helping the Appellant goes against the point being canvassed on his behalf. Apart from these three authorities Mr. R. V. Jahagirdar frankly stated that he could cite no other decision having a bearing on this point. In my opinion, there is no substance whatever in this contention and it is impossible to accept the submission that a suit instituted in contravention of the requirements of Section 69 of the Indian Partnership Act must be deemed to be a non-existent suit or proceeding for the purpose of Section 14 of the Indian Limitation Act 1908.

15. There is, however, considerable substance in the other pleas advanced on behalf of the Appellant in this appeal. The three essential requisites for the application of Section 14 are : (1) identity of the cause of action, (2) absence of jurisdiction or their cause of a like nature in the Court which entertained the prior litigation, and (3) that the Plaintiff must be prosecuting the earlier proceeding with due diligence and must have acted in good faith. the first point is not in dispute in this case, because it is the admitted position that the cause of action on which Regular Civil Suit No. 245 of 1961 was based was the very same cause of acting on which the former suit viz. Regular Civil Suit No. 54 of 1961 was instituted. However, there is serious dispute as to the satisfaction of the other two conditions. It was urged that the former proceeding did not suffer from the defect of jurisdiction or a defect of a like nature. It was further urged that the Plaintiff had not acted in good faith and with due diligence.

16. Now, the earlier proceeding in this case viz. Regular Civil Suit No. 54 of 1961 did not suffer from any defect of jurisdiction, but it was submitted - and this submission was accepted by the lower appellate Court - that it did suffer from a 'defect of a like nature' within the meaning of Section 14 of the Indian Limitation Act. This expression 'defect of a like nature' has been the subject of much judicial comment. In 40 BomLR 1169 = AIR 1939 Bom 26 it was observed that the question what is a 'defect of a like nature' within the meaning of Section 14 of the Indian Limitation Act, 1908, must depend on the facts of each case. These words 'defect of a like nature' must mean and connote something which is quite distinct from defect of jurisdiction. It was further observed that S. 14 of the Act must be liberally construed. If on the facts of a particular case the Court finds that the Plaintiff was prosecuting in good faith another civil proceeding against the same defendant founded on the same cause of action, the time taken by any such proceeding will have to be excluded. In the above decision the Division Bench referred to and followed a Privy Council decision viz. Hem Chunder Chowdhry v. Kali Prosunno Bhaduri, (1903) 30 Ind App 177 . In Mathura Singh v. Bhawani Singh, ILR (1900) All 248 , a Full Bench of the Allahabad High Court was considering a former suit filed by the Plaintiff which was held to be bad on account of mis-joinder of Plaintiffs and causes of action. It was held that under the provisions of Section 14 of the Indian Limitation Act, 1908, the Plaintiff was entitled to the benefit of exclusion of the time during which he was prosecuting the former suit. It was observed ' '.................... if there was an inability in the Court to entertain the former suit produced by any cause not connected in any way with want of good faith or due diligence in the plaintiff that cause is of like nature to defect of jurisdiction within the meaning of Section 14. It is not necessary that the cause which prevented the former Court from entertaining the suit should be a cause which was independent of and beyond the control of the plaintiff.'

17. The words 'or other cause of a like nature' came to be considered by a Full Bench of the Lahore High Court in Jai Kishen Singh v. People's Bank or Northern India, AIR 1944 Lah 136 . It was held that these words must be read so as to convey something ejusdem generis or analogous with the preceding words relating to the defect of jurisdiction. It was observed that if these words are read along with the expression 'is unable to entertain', they would denote that the defect must be of such a character as to make it impossible for a Court to entertain the suit or application either in its inception or at all events as to prevent it from deciding it on its merits. If the earlier suit can at all be said to be decided on its merits, then the provisions contained in Section 14 of the Indian Limitation Act would not be of any avail to the Plaintiff when he files the subsequent suit. If the Plaintiff fails to secure reliefs in the earlier proceeding because on the facts the relief sought is found to have been misconceived or because the facts stated in the earlier plaint or petition do not disclose a good and complete cause of action, then the Plaintiff would not be entitled to take the benefit of the provisions of Section 14 when he files his subsequent suit after rectifying the earlier mistake.

18. A Full Bench of the Patna High Court also had occasion to consider the provisions of Section 14 of the Indian Limitation Act in Lal Bihari Lall v. Bani Madhava Khatri, : AIR1949Pat293 . It was observed by the Patna High Court that the essential object of Section 14 and the principle which underlies it is that the bar of limitation should not affect a person honestly doing his best to get his case tried on merits but failing through the Court being unable to give him such a trial. The principle is clearly applicable not only to cases in which a man brings his suit in the wrong Court, that is, a Court having no jurisdiction to entertain it, but also where he brings the suit in the wrong Court in consequence of a bona fide mistake of law or defect of procedure. It was further observed that given good faith and due diligence, a cause is not prevented from being of a like nature to defect of jurisdiction merely because it was in the Plaintiff's own power to avoid or resulted from his own act or from a bona fide mistake of law or procedure which prevented the Court in limine from entertaining the suit. Applying this principle it was held by the Patna High Court that in a suit under Order 21, Rule 63, Civil Procedure Code, the Plaintiffs were entitled under Section 14 (1) of the Limitation Act to the deduction of time spent in prosecuting in good faith and with due diligence an abortive civil revision filed under a bona fide mistake of law or procedure before the High Court against the adverse order passed under Order 21, Rule 58, Civil Procedure Code.

19. A Full Bench of the High Court of Travancore and Cochin seems to have taken a slightly different view in Govinda Menon v. Krishna Pillai AIR 1955 Trav Co. 51 . The Full Bench of the Travancore-Cochin High Court was, however, dealing with the defect of jurisdiction and not with the defect of a like nature, and accordingly the observations to be found in para. 13 of its judgment must be restricted to defect of jurisdiction and cannot be extended to apply to the like type of defects which are defects other than the defect of jurisdiction as contemplated by S. 14. In my opinion, the contingency which is sought to be provided for by the provisions of Section 14 is the one which is so very well brought out by the Full Bench decision of the Patna High Court in : AIR1949Pat293 referred to above. If the previous proceeding is decided on merits, then the provisions of Section 14 are not available and cannot be utilised. If a cause is not determined on merits but is dismissed in limine by reason of defect of jurisdiction or similar other technical defect, whether of law or of procedure, the Plaintiff would be entitled to claim the benefit of the provisions of Section 14 in the subsequent proceeding if it could be held that the Plaintiff had acted bona fide at the earlier stage.

20. The question now remaining to be considered is the application of these principles to different types of defects from which suits may be said to suffer and which may prevent their being decided on merits. An important decision in this connection, which is comparable in facts, is Rochaldas v. Uttamchand, AIR 1946 Sind 14. In that matter two persons had filed a suit in the sub-ordinate Civil Court at Shikarpur against one Rochaldas and others claiming a money decree. The Plaintiffs were partners of a firm. One day before the period of limitation was about to expire the firm filed a suit against Rochaldas, being Suit No. 310 of 1934. The said suit was dismissed by the subordinate Civil Court of Shikarpur on 15th August 1935 on the ground that the Plaintiffs' firm was not registered as required by Section 69 of the Indian Partnership Act. Against the decision dismissing the suit an appeal was filed which was also dismissed on 17th Oct., 1936; a second appeal was filed against this decision which was summarily dismissed on 16th February 1937. On 17th February 1937 Suit No. 124 of 1937 was filed in the Court of the Subordinate Judge at Shikarpur, which was founded on the same cause of action. To that suit the defence, inter alia, of limitation was taken. The question which arose for the consideration of the Division Bench consisting of Davis C. J. and Thadani. J. was whether the failure of the earlier suit viz. Suit No. 310 of 1934 for want of registration as required under the provisions of Section 69 of the Indian Partnership Act was a cause akin to the defect of jurisdiction within the meaning of Section 14 of the Indian Limitation Act. The Division Bench held that the principles enunciated in ILR (1900) All 248 were the guiding principles. It was submitted that under no circumstances can an act or an omission of a party be construed as a cause of like nature within the meaning of Section 14 of the Indian Limitation Act. Applying these principles enunciated by Strachey C. J. in the Allahabad case it was held that the lower courts had rightly excluded the time from 21st March, 1934 to 16th February, 1937, both days inclusive taken in the dismissal of Suit No. 310 of 1934 in all its stages. Accordingly it was held that Suit No. 124 of 1937 was filed within time.

21. In Governor-General in Council v. Gouri Shankar Mills Ltd., : AIR1951Pat382 , a Division Bench of the Patna High Court was considering the application of Section 14 of the Indian Limitation Act, 1908, to an earlier suit filed without the requisite notice under Section 80 of the Civil Procedure Code. Both the suits were for damages against the Railway for non-delivery of goods. The earlier suit was filed within two months of service of notice under Section 80. C.P.C. and hence this would not amount to compliance with the provisions of Section 80. The plaintiff withdrew the suit with leave of the Court and sued afresh. It was held on these facts that the plaintiff was entitled to exclude the period during which the previous suit was pending in Court. The objection of the defendants that the second suit was barred by the law of limitation was overruled and a decree passed in favour of the plaintiff.

22. Mr. R. V. Jahagirdar on behalf of the appellant relied upon a number of decisions in which the benefit of Section 14 of the Limitation Act was not given to the plaintiff. Reference may be made to a few of them, as in my opinion each of them can be distinguished on facts.

23. In Bai Jamna v. Bai Ichha, ILR (1886) Bom 604, the plaintiff's deceased husband purchased a house at a Court sale but neglected to register his sale certificate. He attempted to recover possession but was obstructed by the defendant who claimed the property as her own. Summary proceedings were thereupon instituted in which the defendant's claim was upheld. In the meantime the plaintiff's husband died. The plaintiff filed a regular suit to establish her title. After filing this suit she obtained a second certificate and registered it. In this regular suit the plaintiff was ultimately non-suited on the ground that at the date of institution of the suit she did not have a registered certificate of sale. Subsequently the plaintiff brought a second suit on the strength of a registered certificate. It was held by the High Court that the plaintiff's suit was barred; the decision proceeded, inter alia, on the footing that the summary proceedings were disposed of on 7th November, 1872 in which the defendant's claim had been upheld and it was obligatory on the plaintiff to displace that order by a regular suit instituted within one year from its date. The plaintiff was also held guilty of laches.

24. Similarly in Hari Janardhan Limaye v. Krishnaji Balkrishna, 30 Bom LR 724 : AIR 1928 Bom 323, the benefit of Section 14 of the Indian Limitation Act was not given to the plaintiff because a previous Darkhast had been dismissed not on the ground of want of jurisdiction but because the decree sought to be executed was not executable personally against the mortgagors and the decree-holder had misconceived his remedy in executing the decree. This was a case where the former proceedings were altogether misconceived. This decision can be distinguished on the ground that the former decisions holding that the application was misconceived and the remedy was not available could be regarded as one given on merits and would not amount to a dismissal in limine on a technicality.

25. Similarly in Brijmohandas Damodardas v. Sadashiv Laxman, 41 Bom LR 1190 : : AIR1940Bom5 , it was held that the time during which the legal representatives of the decree-holder were prosecuting their Darkhast in the Court to which the decree was transferred for execution was not allowed to be excluded because it was found that they had recklessly disregarded the provisions of Order 21, Rule 16 of the Civil Procedure Code, and sought to execute the decree without any authority from the Court which passed it. Now this last case is mainly a decision turning on the question whether the party applying for exclusion of time could be regarded as having conducted the earlier proceedings in good faith or with due diligence. On this point it has to be borne in mind that the former suit in the case before me viz. Regular Civil Suit No. 54 of 1961 cannot be held to have been instituted in reckless disregard of the provisions of Section 69(2) of the Indian Partnership Act, but may be regarded as having been instituted under a bona fide belief that the firm was duly registered, although it eventually turned out that the registration was under Section 26-A of the Indian Income-tax Act and not under the Indian Partnership Act. In India Publishers Ltd. v. Aldridge, ILR (1908) Cal 728, it was held that Section 14 of the Indian Limitation Act was not intended to apply to a case in which a first suit was filed entirely through the negligence and laches of the plaintiff himself. The decision of the Court was that an improper joinder of parties or of causes of action would not be 'a cause of like nature' within the meaning of Section 14 of the Indian Limitation Act. In Kashiram v. Santokhbai, : AIR1958MP91 , the earlier suit for recovery of a sum of money against the son of a 'Mukhtar-Am' was held to be misconceived. When a second suit for accounts was filed, it was held that the plaintiff was not entitled to the benefit of the provisions of Section 14 of the Indian Limitation Act because the earlier suit had been dismissed not because the Court had no jurisdiction to entertain it or for any other cause of a like nature, but because it was misconceived. In the case before the Madhya Pradesh High Court, the earlier suit had been dismissed because the relief for rendition of accounts was not available against the son of a deceased Mukhtar. The time taken for such proceedings, in the opinion of the Court, could not be excluded for computing the period of limitation to file a second suit.

26. Applying the principles enunciated in ILR All 248 and : AIR1949Pat293 and bearing in mind the general approach commended in 40 BomLR 1169 : AIR 1939 Bom 26 , that the provisions of Section 14 must be liberally construed. I am of opinion that the earlier suit filed by the plaintiff viz. Regular Civil Suit No. 54 of 1961 did suffer from a defect which was within the meaning of the expression 'defect of a like nature' in Section 14 of the Indian Limitation Act, 1908, and that the plaintiff would be entitled to take advantage of the provisions of that section provided that it is possible to hold that the plaintiff had acted in good faith or with due diligence.

27. This brings us to a consideration of the last two points advanced on behalf of the appellant. It was submitted that the conduct of the plaintiff in instituting the earlier suit in reckless disregard of the express provisions of Section 69(2) of the Indian Partnership Act as well as the conduct of the plaintiff's partner after 31st August, 1961 was such as would not entitle the plaintiff to the benefit of the provisions of Section 14 of the Indian Limitation Act.

28. It is well settled that 'good faith' as contemplated by sub-sections (1) and (2) of Section 14 of the Indian Limitation Act, 1908, is not he same 'good faith' as contemplated under the General Clauses Act. We have a special definition of the expression 'good faith' in the Limitation Act and Section 2(7) provides that nothing shall be deemed to be done n good faith which is not done with due care and attention. When we turn to the definition of 'good faith' in the General Clauses Act, the definition is that a thing shall be deemed to be done in good faith where it is in fact done honestly, whether it is done negligently or not. Therefore, while the General Clauses Act emphasises 'honesty' and ignores the factor of negligence, the Indian Limitation Act emphasizes not 'honesty' but that a party has acted with due care and attention. Now, this question is principally one of correct conclusion to be arrived at from the facts which are found. I have already earlier referred to the fact that the lower appellate Court found the plaintiff's partner's evidence to be trustworthy and has accepted the same in toto.

29. What does that evidence reveal It reveals in my view that the plaintiff had instituted the earlier suit under a bona fide belief that his firm was duly registered. It was subsequently ascertained that the registration was not under the Indian partnership Act but under Section 26-A of the Indian Income-tax Act. In this view of the matter it will not be possible to hold that the earlier suit instituted by the plaintiff was one instituted in reckless disregard of the provisions of Section 69(2) of the Indian Partnership Act. Although there was lack of compliance with the provisions of Section 69(2) the non-compliance was under a bona fide error and cannot be characterised as one done in utter disregard or defiance of the statutory provisions.

30. Let us now turn to the events after 31st August 1961. It was submitted on behalf of the appellant that even when the plaintiff's attention was drawn to the defect in the earlier proceeding, the plaintiff took as many as forty-seven days before taking effective steps to rectify the defect. Now, in the first place, the written statement does not clearly aver that the plaintiff's firm is not duly registered as required under the Indian partnership Act. The written statement merely contains an averment in general terms as follows:- 'That the plaintiff is put to the strict proof of the allegation that the firm is duly registered, and it is submitted that if the plaintiff failed to prove this, the suit is liable to be dismissed.' Although this submission was in rather general terms, it caused the plaintiff's pleader to make necessary inquiry from the plaintiff and to insist upon the plaintiff producing the certificate of registration for his (the pleader's) perusal. This inquiry made by the pleader resulted in the plaintiff realising his error, whereupon an application was made for the registration of the firm on 16th October, 1961 and the Purshis (Exhibit 45) was filed on 17th October, 1961, after which Regular Suit No. 54 of 1961 was got dismissed with costs. It is not possible to regard the time taken as unduly long which must result in the plaintiff's conduct being characterised as not diligent. The steps taken by the plaintiff after the filing of the written statement are not steps as can be characterised as having been taken without due care and attention. Necessary inquiries had to be made in order to ascertain the truth or otherwise of the general plea taken by the defendant. After ascertaining that there was substance in the contention, the plaintiff appears to have immediately taken steps to rectify the defect and also for appraising the Court of the fact of the technical defect in the pending suit. It is the plaintiff who appears to have obtained so to say from the Court the order of dismissal of his suit. The plaintiff thereafter also filed a fresh suit on the very same day on which the earlier proceeding was dismissed.

31. In connection with this head of argument Mr. R. V. Jahagirdar drew my attention to a very recently reported decision of the Supreme Court in Rabindra Nath v. Sivakami, : AIR1972SC730 . The plaintiff in this litigation was a purchaser from parties who had purchased certain lands at Court sales for arrears of land revenue. The sales were confirmed, sale sanads were issued and possession of the lands was delivered to the purchaser. He leased the lands to the 6th Defendant who paid the rent for one crop and when the plaintiff demanded rent for the subsequent crops, the 6th Defendant informed the plaintiff that Defendants 1 to 5 were demanding the rent as they alleged they were entitled to it. The Plaintiff thereupon made inquiries and found that Defendants 1 to 5 had applied to the Chief Revenue Authority for setting aside the sales and that the said authority without notice to the purchaser or to the plaintiff had set aside the sales. In 1946 the plaintiff filed a suit for a declaration that the orders of setting aside the sales were without jurisdiction, but to such a suit neither the State nor the Government was made a party. An objection was taken by the defendants that the suit was not maintainable. This contention was negatived by the District Munsif and a revision against this decision was filed in the High Court. When the matter came up for hearing the learned Advocate for the plaintiff-respondent stated that the Government was not a necessary party to the suit and that the plaintiff was prepared to take the risk of not impleading the State as a party. On this statement made by the Advocate for the plaintiff-respondent, the High court dismissed the revision petition. After the remand the case was tried by the District Munsif who passed a decree in favour of the plaintiff. The contesting defendants appealed to the District Court, but that appeal was dismissed. A second appeal was filed in the High Court and it was heard by a full Bench of the Travancore-Cochin High Court. The High Court by its judgment held that the Government was a necessary party to the suit and that by reason of the failure of the plaintiff to implead the Government the suit was not maintainable. Accordingly the appeal was allowed and the suit dismissed. After the suit was dismissed the plaintiff gave a notice to the Government under Section 80 of C. P. C. and thereafter filed a fresh suit in 1957 in the Court of the principal Subordinate Judge, Nagarcoil. the State of Madras was the 7th defendant to this suit. One of the pleas taken on behalf of the contesting defendants to that suit was the plea of limitation. The Subordinate Judge on this issue held that the second suit though filed long after the expiry of twelve years from the date of revenue sales was not barred, because the plaintiff was entitled to exclude under Section 14 of the Limitation Act the time spent in prosecuting the earlier suit. If this period was excluded the suit would be in time and was held, therefore, to be within the prescribed period of limitation. Consequently the Subordinate Judge decreed the suit. In appeal the High Court of Madras came to a different conclusion on the question of limitation. The conduct and the attitude of the plaintiff were referred to and commented upon and held sufficient to dispose of the question of bona fides against him. Accordingly the High Court dismissed the suit. The plaintiff preferred an appeal to the Supreme Court, and the Supreme Court agreed with the decision of the High Court, holding that the reasons given by the High Court for not extending the benefit of Section 14 were cogent. According to P. Jaganmohan Reddy, J. who spoke for the Supreme Court. 'Section 14 of the repealed Limitation Act which is applicable to this case given benefit to a party who has been prosecuting with due diligence another civil proceeding whether in a Court of first instance or in a Court of first appeal against the defendant, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which from the defect of jurisdiction or other cause of like nature is unable to entertain it.' The Court held that there could be no two opinions as to the question whether the plaintiff had bona fide prosecuted the earlier suit. The objections as to maintainability was taken at the very initial stage, but that was resisted. At every stage thereafter according to the Supreme Court, the plaintiff could not be said to be prosecuting the previous proceeding bona fide. It was held that the plaintiff took a chance, that he failed in his gamble and that he could not therefore, be said to be prosecuting the earlier proceedings bona fide.

32. The conduct of the plaintiff in the present case and his prosecution of Regular Civil Suit No. 54 of 1961 during the limited period of seven months are in no way comparable to the conduct of the plaintiff in the litigation being considered by the Supreme Court. The position might have been different had the plaintiff persisted in his attitude despite the plea taken in the defendant's written statement, or made no efforts to find out the true position. For instance, if the suit had gone for regular trial and after framing the issues it had been discovered that the plaintiff's firm was not registered under the Indian Partnership Act 1932, which would have resulted in the dismissal of his suit, then it would have been a moot point whether the plaintiff's conduct in that proceeding could be regarded as bona fide. In the case before me it has been held that the plaintiff's firm was registered under the provisions of Section 26-A of the Indian Income-tax Act. The plaintiff instituted the previous suit under an erroneous belief that registration of the firm under the provisions of the Indian Income-tax Act was sufficient in law and would amount to compliance with the requirements of Section 69 of the Indian Partnership Act. When the plaintiff's pleader was put up on an inquiry as a result of the general plea taken in the written statement, it has been found that the plaintiff's partner took effective steps, ascertained the true position and immediately brought it to the notice of the plaintiff's pleader. Thereafter an application for registration of the firm was made and a Purshis was thereafter immediately filed in Court conceding the true position, which resulted in the dismissal of the earlier suit. I am not prepared to hold such conduct as showing lack of bona fides or to characterise the plaintiff as a person who has acted without due diligence.

33. In this view of the matter, this second appeal must fail and will stand dismissed with costs.

34. Appeal dismissed.


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