(1) This appeal arises from a suit filed, by the plaintiff-respondent to recover from the defendant-appellant a sum of Rs. 6,900. The suit is based upon a hand-loan dated 23-54944. The defence to the suit was that there was no hand-loan given by the plaintiff to the defendant but that the sum of Rs. 10,000 paid by the plaintiff to the defendant was towards the dues owing by him to the defendant. This defence did not prevail in the trial Court and the learned trial Judge passed in favour of the plaintiff a decree for the amount claimed with interest and costs as set out in the order. The defendant has come up in appeal.
(2) Upon this appeal Mr. Joshi for the defendant-appellant contends that the plaintiff's suit giving rise to this appeal was barred by the law of limitation. It is to be noted that in the trial Court the plea of limitation was not taken by the defendant, but that makes no difference, because Section 3, Limitation Act, provides that
'Subject to the provisions contained in Sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefor by the first schedule shall be dismissed, although limitation has not been set up as a defence.'
It is accordingly necessary to consider the plea, though raised in appeal.
(3) Now, the facts having a bearing upon the question of limitation are these The transaction sued on is a hand-loan of the date 23-5-1944, the amount of the hand-loan being a sum of Rs. 10,000. In order to recover this loan the plaintiff would have, without anything more, to bring the suit within three years from 23-5-1944, so that the plaintiff must bring his suit on or before 23-5-1047. It so happened however, that on that day the Court of the Civil Judge at Alibag, in which the suit came to be instituted, was closed owing to the summer vacation of the Court and it appears that the suit was instituted in the Court of the Civil Judge at Alibag on 9-6-1947, after the re-opening of that Court after its summer vacation. It is not in dispute that the summer vacation of the Court was over on 8-6-1947, and that the Court re-opened on 9-6-1947, when the plaint was presented. It appears that thereafter the plaint was examined and the learned trial Judge took the view that ho had no jurisdiction to entertain the suit and by his order dated 11-7-1947, he returned the plaint for presentation to the proper Court, The plaint was returned on 11-7-1947, at 4 p. in. The ground upon which this order was made was that the original jurisdiction of the learned Civil Judge was to try suits up to Rs. 7,500 but only such suits in which the cause of action had arisen in the taluka of Alibag. In the present case, according to the averment made in the plaint the cause of action for the suit arose on 23-5-1944, within the special jurisdiction of the Court at Khaire, taluka Roha, and it is not in dispute that the Court of the Civil Judge at Alibag would have no jurisdiction to try suits in respect of causes of action arising within the Roha taluka. The plaint was accordingly filed in the Court of the Civil Judge, Senior Division, Thana, on 12-7-1947, and in that Court the suit bore special jurisdiction suit No. 38 of 1947. It appears that the suit was subsequently transferred to the Court of the Civil Judge, Senior Division, at Alibag and was received by that Court on 1-12-l947. Upon its transfer to the latter Court the suit proceeded in that Court and the learned Judge gave the plaintiff a decree for the amount claimed on 30-11-1948.
(4) Now, if the learned Civil Judge, Junior Division, at Alibag, had no power to try this suit, it is clear that the suit was instituted in the wrong Court and in this connection two periods of time have to be considered. The first of the two periods is between 23-5-1947, and 8-6-1947, and in this connection the plain-till' relies upon Section 4 Limitation Act. The second period is between 9-6-1947, and 11-7-1947, when the suit was pending in the Alibag Court, and in this connection the plaintiff relies upon Section 14 Limitation Act. It is not necessary to consider the last of the periods which is between 12-7-1947, and 1-12-1947, because the suit was pending in the right Court during, that period. Mr. Kotwal for the respondent says that he is entitled to exclude the period between 9-6-1947, and 11-7-1947, under Section 14 Limitation Act and Mr. Joshi for the appellant does not dispute that this period has got to be excluded. But then Mr. Kotwal argues that he is entitled to exclude the period between 23-5-1947, and 8-6-1947. In our opinion, Mr. Kotwal is wrong in saying that he is entitled to take into consideration the period between 23-5-1947, and 8-6-1947. Section 4 Limitation Act runs as follows :
'Where the period of limitation prescribed for any suit, appeal or application expires. on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court re-opens.'
It is apparent from the language of the section that under Section 4 there is no question of any period being excluded. What Section 4 provides is that if a suit cannot be instituted in the Court during the period, when the Court is closed, the suit may be instituted on the day on which thr Court re-opens. In this case the plaintiff would be required to file the suit on 23-5-1947, if there was no summer vacation of the Court intervening. But since the Court was closed owing to its summer vacation, the plaintiff was entitled to institute the suit on 9-6-1947. But in order to successfully rely upon Section 4, the plaintiff would be required to institute the suit in the right Court. R is true that Section 4 does not use the expression 'the right Court'. Section 4 merely refers to 'the Court'. But it seems to me that it is implied in the section that when a suit is to be instituted in the Court when the Court is closed, the suit must be instituted in the Court in which the suit must be brought, i.e. the right Court.
(5) Now, on the facts which have been proved in this case, it is clear that the Court of the Civil Judge at Alibag had no jurisdiction to entertain the suit because the suit was 0119 which arose out of a cause of action which arose within the jurisdiction of the Roha taluk a. The suit would, therefore, be required to be instituted in the Court of the Civil Judge, Senior Division, Thana. But the plaintiff by mistake instituted the suit in the Court of the Civil Judge at Alibag, and if the construction of Section 4 is right that the suit must be instituted in the right Court, then the plaintiff is not entitled to the consideration of the period between 23-5-1947, and 3-6-1947, so that Section 4 will not help him. If Section 4 does not help him, it is clear that the plaintiff's suit would be barred by the law of limitation.
(6) But then Mr. Kotwal argues that the suit was rightly instituted in the Court at Alibag but was presented to a wrong Judge. It is not easy to understand this argument because, according to Order 4, Rule 1, Civil P. C., every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf, so that a suit has to be instituted by the presentation of a plaint to the Court and in this instance the plaint was presented in the Court of the Civil Judge at Alibag. There is no doubt that the pleaders who presented the plaint in that Court were under the impression that the Alibag Court had power to entertain the suit because the Judge concerned had power to try claims exceeding Rs. 5,000 and less than Rs. 7,500 and the plaintiff's suit was to recover Rs. 6,900. But that will not confer upon the Civil Judge at Alibag the power to try this suit because the Civil Judge at Alibag would be still a Civil Judge, Junior Division, having power to try original suits and proceedings of a civil nature up to the limit of Rs. 7, 500. That does not make the Civil Judge a Judge of the Senior Division because, according to Section 25 Bombay Civil Courts Act
'A Civil Judge, Senior Division, in addition to his ordinary jurisdiction shall exercise a special jurisdiction in respect of such suits and proceedings of a civil nature as may arise within the local jurisdiction of the Courts in the District presided over by Civil Judges, Junior Division, and wherein the subject-matter exceeds the pecuniary jurisdiction of the Civil Judge, Junior Division, as denned by Section 24.'
Mr. Kotwal is, therefore, not right in saying that the plaint was presented in the right Court but to a wrong Judge. .
(7) This view of Section 4 is in accordance with the decision of their Lordships of the Privy Council reported in --'Maqbul Ahmad v. On-kar Pratap Narain Singh', . It is enough, I think, to reproduce here a part of the head-note which runs as follows :
The expression, 'on the day that the Court re-opens' in Section 4 refers to the 'proper Court' in which the application etc. ought to have been made. In other words, the benefit of Section 4 can be claimed only when the application etc. is made in the proper Court on the day on which 'that' Court re-opens.'
(8) It may be noted that a contrary view was taken in the case of -- 'Basvanappa v. Krishnadas', AIR 1921 Bom 379 (B), upon which Mr. Kotwal relied. But with reference to this case this is what their Lordships observed at page 88 of the report:
Their Lordships only desire to add one other word, and it is this, that the decision which has been referred to in the case of --'Basvanappa v. Krishnadas', (B), cannot, in their view, be supported, having regard to the provisions of Sections 3, 4 and 14 of the Indian Limitation Act.'
Their Lordships' decision in --'Maqbul Ahmad's case (A)', would be enough, apart from anything else, to dispose of this point in favour of the defendant-appellant. However this view of Section 4 has been taken by the Indian Courts also in several cases. It may be enough to refer to the following: see --'Mukund Ram v. Ramraj', AIR 1916 All 222(C); --'Um-mathu v. Pathumma'. AIR 1921 Mad 654 (D); --'Dharman Ram-Ladha Rani v. Ganga Ram', AIR 1929 Lah 425 (E); --'Firm Buja Mal-Gainda Mal v. Mukta Parshad', AIR 1937 Lah 4 (F); -- 'Anil Prokash v. Dhirendra Nath', 41 C WN 956 (G) and -- 'Wamanrao v. Umrao', AIR 1937 Nag 215 (H).
(9) For the above reasons we think that the plaintiff's suit is barred by the law of limitation and the decree appealed from cannot, therefore, be supported.
(10) Mr. Kotwal for the plaintiff-respondent, however, contends that even though his suit would, upon the view which we have indicated above, be barred by the law of limitation and is liable to be dismissed, his suit would, nevertheless, be saved by reason of the repayments made by the defendant on 7-9-1944, 19-12-1944, 2-2-1945, and 1-3-1945. These repayments are respectively in the sums of Rs. 500, Rs. 1,200, Rs. 100 and Rs. 1,300 and they are referred to in the plaint. These repayments may help him, and if the repayments are in the shape of part payments of the principal in the handwriting of the defendant, it is yet possible to have the suit from the bar of limitation. Mr. Kotwal, therefore, applies that he should be allowed some time to consider whether he can or cannot successfully rely upon these repayments as saving the suit from the bar of limitation. Final orders, therefore, upon this appeal will be passed hereafter and the appeal will stand adjourned to 28-7-1952.
(11) August 11. When this appeal was last heard on 14-7-1952, we delivered a judgment and held that, in the view we took of the case, the plaintiff's suit was barred by the law of limitation. But Mr. Kotwal for the plaintiff-respondent took time to consider whether he would not be able to bring his suit in time by relying upon certain repayments alleged to have been made by the defendant, and so the matter was allowed to stand over.
(12) On the matter being called on today, Mr. Kotwal says that the plaintiff is unable to rely upon any repayment so as to bring the claim in time. The result, therefore, is that, on the view which we took on 14-7-1952, it must be held that the plaintiff's claim must fail.
(13) The appeal will, therefore, be allowed, the decree of the lower Court reversed and the plaintiff's suit dismissed.
(14) As regards costs, the position is this. The plea of limitation on which the defendant succeeds was not taken in the trial Court but was taken for the first time by Mr. Joshi in appeal. In these circumstances, the proper order as to costs will be that the plaintiff and the defendant shall bear their own costs in the trial Court but that the defendant-appellant shall recover from the plaintiff-respondent the costs of this appeal.
(15) In Civil Appln. No. 269 of 1951, which is for additional evidence, there will be 110 order.
(16) Appeal allowed.