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Sarubai and anr. Vs. Babu Bhikaji Takle and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 1955 of 1954
Judge
Reported inAIR1957Bom28
ActsDebt Law; Bombay Agricultural Debtors Relief Act, 1947 - Sections 4 and 24(2); Limitation Act, 1908 - Sections 14(1) and 29; Bombay Agricultural Debtors Relief Act, 1939
AppellantSarubai and anr.
RespondentBabu Bhikaji Takle and ors.
Appellant AdvocateN.D. Dange, Adv.
Respondent AdvocateK.J. Abhyankar, Adv. for ;V.T. Walawalkar, Adv. and ;V.S. Desai, Adv.
Excerpt:
- - if the petitioners were prosecuting the application in good faith and with due diligence the time which was taken up in prosecuting the application in the poona court is liable to be excluded under section 14(1) of the limitation act read with section 29 thereof. 4. the courts below, however, have not considered whether the application filed by the petitioners in the poona court was prosecuted with due diligence and in good faith in that court. if it be found that the application was filed and was prosecuted with due diligence and in good faith, then, in my view, section 14(1), limitation act, comes to the aid of the petitioners......on the view taken by the khed court that the petitioners were debtors and they should have filed an application for adjustment of debt under the b. a. d. b. act of 1939. the application was rejected on 16-2-1953, on the view that it was barred by limitation. an appeal was preferred against that order to the district court and the order passed by the learned trial judge was confirmed by the extra assistant judge of poona. the petitioners-have applied to this court in revision. 2. now it is undisputed that the poona court had no territorial jurisdiction to entertain the proceedings filed by the petitioners, but the proceedings were pending for nearly four years and five months in that court. some time before the order returning the papers for re-presentation to the proper court was.....
Judgment:
ORDER

1. The petitioners submitted an application to the Debt Adjustment Court at Poona on 31-7-1947, for adjustment of their debts under Section 4 of the B. A. D. B Act. By that application the petitioners claimed that they were debtors within the meaning of the B. A. p. B. Act. It may be mentioned that the last date for filing the application was 31-7-1947, and the application was filed on the very last day. On 18-8-1951, the petitioners applied by the application Exhibit 26 for amendment of the petition alleging that they were agricultural labourers and not debtors within the meaning of the B.A.D.B. Act.

This application was granted ex parte and the issues raised by the Court were amended. There, after on 27-12-1951, the proceedings reached hearing before the Debt Adjustment Court. The second petitioner was examined and the court found that the petitioners were not residents of Poona but were residents of Khed which was not within the territorial limits of the Debt Adjustment Court at Poona. The learned Judge, therefore, ordered that the papers be returned for presentation to the proper Court. The application was accordingly re-presented on 28-12-1951, to the Debt Adjustment Court at Khed.

It appears that even though the learned Judge of the Debt Adjustment Court had granted the application Exhibit 26 for amendment of the petition, no formal amendment was made in the application filed by the petitioners. On 14-11-1952, the petitioners again applied for amendment of the application and for an order for effectuating the amendment showing that the petitioners were agricultural debtors. That application was also granted but ex parte and issues were raised in the light of the amended application. Thereafter the opponents applied for review of the order passed on the ground that the order of amendment was made without giving them notice and without hearing them on the objections which may be raised by them.

Beview was granted and the Court ultimately held that the amendment application should be rejected. On the view taken by the Khed Court that the petitioners were debtors and they should have filed an application for adjustment of debt under the B. A. D. B. Act of 1939. the application was rejected on 16-2-1953, on the view that it was barred by limitation. An appeal was preferred against that order to the District Court and the order passed by the learned trial Judge was confirmed by the Extra Assistant Judge of Poona. The petitioners-have applied to this Court in revision.

2. Now it is undisputed that the Poona Court had no territorial jurisdiction to entertain the proceedings filed by the petitioners, but the proceedings were pending for nearly four years and five months in that Court. Some time before the order returning the papers for re-presentation to the proper Court was passed the petitioners had applied for amendment of the application and that application was granted.

If the petitioners were prosecuting the application in good faith and with due diligence the time which was taken up in prosecuting the application in the Poona Court is liable to be excluded under Section 14(1) of the Limitation Act read with Section 29 thereof. The fact that the application was filed by the petitioners on the allegation that they were debtors did not prevent them from showing at the trial that they were agricultural labourers and entitled to the benefit of Section 24(2) of the B. A. D. B. Act.

This Court has held in shankar Nagu v. Mahi-bub Bandu, : AIR1953Bom123 that where an application is filed under Section 4 of the B. A. D. R. Act for adjustment of debts within the period of limitation prescribed by Section 4 there; of and it is found at the trial that the petitioner is not a debtor within the meaning of the Act, he is still entitled to prosecute the application as an agricultural labourer within the meaning of Section 24 (2) of the Act In that case an application was filed on 24-4-1947, for adjustment of debts under Section 4 of the B. A. D. R. Act.

It was found at the trial that the applicant was not a debtor within the meaning of the Act but he claimed the status of an agricultural labourer under Section 24(2) and the learned Chief Justice, who decided the case, held that the petitioner having alleged that he was an agricultural labourer and his application having been made before 1-8-1947, (which was the last day for filing the application) it must be regarded as properly filed and the petitioner was entitled to have the same heard and disposed of according to law.

3. The only difference between that case and the present case is that in that case the application was presented in a Court which had territorial jurisdiction to entertain it, whereas in the present case the application was presented initially in a Court which had no territorial jurisdiction to entertain it. But in my view the application of the principle is not affected by reason of that distinction.

If the petitioners are entitled to the benefit of Section 14(1), Limitation Act, the application having been made on 31-7-1947, the petitioners are entitled to show at the trial that they are agricultural labourers and hence entitled to the benefit of Section 24 (2) of the B. A. D. B. Act.

4. The Courts below, however, have not considered whether the application filed by the petitioners in the Poona Court was prosecuted with due diligence and in good faith in that Court. If it be found that the application was filed and was prosecuted with due diligence and in good faith, then, in my view, Section 14(1), Limitation Act, comes to the aid of the petitioners. Evidently the Poona Court was unable to entertain the application filed by the petitioners from defect of jurisdiction. It is also clear that the application in Poona Court was filed within the period of limitation prescribed by the B. A.D.R. Act.

As the Courts below have not considered whether the requirement of Section 14(1), Limitation Act comes to the aid of the petitioners as they have dismissed the application filed by the petitioners as barred by limitation, the order passed by the Courts below must be set aside and the proceedings remanded to the trial Court with a direction that the trial Court do proceed to consider whether in view of Section 14(1), Limitation Act, read with Section 29 thereof, in the computation of the period of limitation for filing the application by the petitioners in the Khed Court the time taken in the prosecution of the application in the Poona Court is liable to be excluded.

The learned trial Judge will enable the petitioners to formally amend the application filed by them and to plead that they are entitled to exclusion of the time taken up in the prosecution of the application before the Poona Court and will give opportunity to the opponents to file a written statement in that behalf and he will thereafter consider the question of limitation after giving opportunity to both the parties to lead such evidence as they desire to lead. Costs in this revision application will be costs before the trial Court.

5. Case remanded.


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