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Devidas Dhanji Vs. Vithaldas Kashidas - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 748 of 1910
Judge
Reported in(1911)13BOMLR1183; 12Ind.Cas.925
AppellantDevidas Dhanji
RespondentVithaldas Kashidas
Excerpt:
.....filed in time, for the plaintiff was entitled under section 48 of the act to deduct the period from the 23rd may to the 3rd december 1908, for the whole proceeding during this period was substantially one continuous proceeding. -..........it within the period of limitation on the ground that on the 23rd of may he had applied for a conciliator's certificate under section 39 of the dekhan agriculturists' relief act. that certificate was granted to him on the 31st of august 1908. but it appears that on the 10th of september, 1908, both he and the defendant made a joint application on the strength of a kabulayat executed by the defendant to the conciliator. the conciliator on receipt of that application held that the certificate, which had been granted on the 31st of august, had become useless. accordingly, he gave a fresh certificate on the 3rd of december in compliance with the prayer in the joint application of the 10th of september. it is contended for the appellants (defendants) that the suit brought on the 11th of.....
Judgment:

N.G. Chandavarkar, Kt., J.

1. The facts are these. The suit was brought on a promissory note dated the 12th of June, 1905, and it was presented to the Court on the 11th of December, 1908. On the face of it, therefore, the suit was barred; but the plaintiff seeks to bring it within the period of limitation on the ground that on the 23rd of May he had applied for a conciliator's certificate under Section 39 of the Dekhan Agriculturists' Relief Act. That certificate was granted to him on the 31st of August 1908. But it appears that on the 10th of September, 1908, both he and the defendant made a joint application on the strength of a kabulayat executed by the defendant to the conciliator. The conciliator on receipt of that application held that the certificate, which had been granted on the 31st of August, had become useless. Accordingly, he gave a fresh certificate on the 3rd of December in compliance with the prayer in the joint application of the 10th of September. It is contended for the appellants (defendants) that the suit brought on the 11th of December, 1908 is barred, because the plaintiff is not, entitled to a deduction of the period from the 23rd of May to the 10th of September, 1908. We think that that period ought to be deducted, because the whole proceeding from the 23rd of May to the 3rd of December, when the certificate was given, was substantially one continuous proceeding. It is true that the conciliator held on the 20th of September, 1908, that the certificate granted by him on the 31st of August, 1908, had become useless; but when we look at the facts, it appears to us that the old certificate merged in the new. It is urged, however, by Mr. R.R. Desai that this is a new case altogether which was not presented to either of the Courts below, and that it raised new facts which ought not to be allowed in second appeal; but assuming that it is a question of fact, we have jurisdiction under the new Civil Procedure Code to record our finding upon it, as the question was not determined by the Courts below and arises on facts which are admitted.

2. Therefore, looking to the whole proceeding from the 23rd of May 1908 to the 3rd of December 1908 as one and continuous, it must be held that the plaintiff's suit is within time.

3. For these reasons, the decree must be confirmed with costs.


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