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Mackey Brothers Vs. Jethanand Jessumal - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai High Court
Decided On
Case NumberCivil Revision Application Nos. 425 and 789 of 1956
Judge
Reported in(1956)58BOMLR1050
AppellantMackey Brothers
RespondentJethanand Jessumal
Excerpt:
.....1908), order xxxvii, rules 1, 2-indian limitation act (ix of 1908), sections 14, 19; article 64a-summary suits filed not within time prescribed under article 64a, (1) to recover amount of dishonoured cheque and (2) to recover amount of loan-plaintiffs in suits relying upon sections 14 and 19 of limitation act-whether plaintiffs entitled to file suits as summary suits-applicability of sections 14 and 19 of limitation act to summary suits.; the plaintiff is, entitled to file a suit under the summary procedure or under the ordinary procedure as he deems fit, and if the suit is barred by time as a summary suit, the suit can be dismissed as a summary suit giving an option to the plaintiff to take it over to the regular side; but the court cannot refuse to let the suit be filed.; whether a..........act the filing of the suit could not be prevented. the plaintiff is entitled to file even a time-barred suit. if a suit is barred by limitation, an order can be made under section 3 of the limitation act dismissing the suit as barred by time. it is not correct therefore to contend, as the defendants have contended, that because in this case the suit was barred by time, if the plaintiffs could not take advantage of the provisions of sections 14 and 19 of the limitation act the suit could not be filed as a summary suit at all. the plaintiff is entitled to file a suit under the summary procedure or under the ordinary procedure as he deemed fit, and if the suit is barred by time as a summary suit, as of course it could well be, the suit could be dismissed as a summary suit giving an.....
Judgment:

Bavdekar, J.

1. These two applications for revision arise from two summary suits and may be conveniently disposed of by one judgment as a certain common question of law is involved. The first suit is a suit upon a dishonoured cheque and the plaintiff sued to recover from the defendant the amount of the cheque after giving credit to him of an amount which the plaintiff said was due to him upon certain independent transactions. The defendant applied for leave to defend and the defences taken by him, which it is necessary to state for the purpose of the present application, are that the present suit could not be filed as a summary suit because the plaintiff's suit was not filed within the period of three years provided for filing such suits under Article 64A of the Indian Limitation Act. The plaintiff wished to rely upon the provisions of Sections 19 and 14 of the Limitation Act in order to save limitation. He said that he had been prosecuting an application against the defendant under the Displaced Persons (Debts Adjustment) Act, 1951, and the period during which he was prosecuting that application should be deducted in computing the period of limitation for filing the present suit. He also relied upon an as knowledgment by the defendant upon which he wished to rely in order to save limitation. The defendant said that the suit in which plaintiff claimed that the period taken by the plaintiff in prosecuting the proceedings under the Displaced Persons (Debts Adjustment) Act, 1951, in another Court should be deducted would not be a summary suit. The defendant also sad that a suit which was filed more than three years prescribed for it under Article 64A of the Limitation Act was also not a suit which could be filed as a summary suit. The defendant contended besides that in this case the plaintiff wished to give the defendant a set off in regard to certain transactions which he claimed were independent transactions. But according to the defendant these transactions were not independent transactions. There was only one set of transactions between the plaintiff and the defendant' and the defendant had given the plaintiff five cheques on account. The defendant stopped payment of the last cheque because accounts were never made and the defendant found that if the account were made the money would be due from the plaintiff to the defendant.

2. The other suit was a suit by the plaintiffs upon a loan, but in the plaint the plaintiffs stated that they had by mistake failed to deduct the amount of the loan from the surrender values of certain policies which they had made over to the defendant. Here again the plaintiffs wanted to rely upon the provisions of Section 19 of the Limitation Act in order to save limitation, and the defendant took up the same contention as the defendant in the other suit, namely, that a suit in which the plaintiffs wished to rely upon the provisions of Section 19 of the Limitation Act in order to save limitation would not be a suit which could he filed as a summary suit. The defendant also contended that in this case according to the plaint itself the plaintiffs had failed to deduct the amount of the loan from the surrender values of certain policies which had been made over by the plaintiffs to the defendant, and such a suit making such a claim again was not a suit which could be filed under the summary procedure.

3. In both the cases the defendants have been allowed conditional leave to defend and they have now come in revision saying that unconditional leave ought to have been given and the suits should have been transferred to the regular side.

4. Now, it has got to be remembered that in the first instance whether the suits were barred by time or not under the provisions of Article 64A of the Indian Limitation Act the filing of the suit could not be prevented. The plaintiff is entitled to file even a time-barred suit. If a suit is barred by limitation, an order can be made under Section 3 of the Limitation Act dismissing the suit as barred by time. It is not correct therefore to contend, as the defendants have contended, that because in this case the suit was barred by time, if the plaintiffs could not take advantage of the provisions of Sections 14 and 19 of the Limitation Act the suit could not be filed as a summary suit at all. The plaintiff is entitled to file a suit under the summary procedure or under the ordinary procedure as he deemed fit, and if the suit is barred by time as a summary suit, as of course it could well be, the suit could be dismissed as a summary suit giving an option to the plaintiff to take it over to the regular side; but the Court could not refuse, to let the suit be filed. The reason is that whether a suit under the summary procedure lies or not, depends upon whether the suit falls within the purview of the provisions of Order XXXVII, Rule 2, of the Civil Procedure Code, as they are after the amendment of these rules by this Court under the powers given to it under Section 122 of the Code. Now, it is not contended before us that the suits are not of the type which can be filed as a summary suit. One suit is a suit for the amount? due upon a dishonoured cheque. The other suit is a suit upon a loan. It is common ground that if the suits had been in time irrespective of the provisions of Sections 14 and 19 of the Indian Limitation Act they could be filed as summary suits. Now, assuming for the purpose of argument that the plaintiff was not entitled to take advantage of the provisions of either Section 14 or Section 19 of the Indian Limitation Act, the suits do not cease to be suits within the description given in Order XXXVII, Rule 2, of the Civil Procedure Code. The plaintiff was entitled, therefore, to file the suits as summary suits. If the Court came to the conclusion that the suits were barred by limitation as summary suits, it would pass the usual order. I presume that the order would be that the plaintiff would be given a choice. The suit would be dismissed unless the plaintiff was willing that the suit would be taken over by him to the ordinary side. It may be that the proper order was to transfer it to the ordinary side. But the proper order would be made and the suit could not be thrown out altogether, the Court saying that it refused to entertain the suit as a summary suit.

5. The next contention is that the plaintiffs wished to take advantage of the provisions of Section 14 or Section 19 or both of the Indian Limitation Act in order to save limitation and that suits in which the plaintiff so wished to take advantage of the provisions of one or the other of these two sections could not be filed as summary suits. But here again whether the suits could be filed as summary suits depends upon whether the suits fell within the description given in Order XXXVII, Rule 2, of the Civil Procedure Code; it did not depend upon whether the suits were barred by limitation or not, nor did it depend upon whether the suits would be in time if the plaintiff was entitled to deduct when computing the period of limitation the time taken by him in prosecuting another proceeding, under the provisions of Section 14 of the Limitation Act, or he was entitled to take advantage of an acknowledgment made by the defendant in order to save limitation.

6. It is said, however, that in any case the suits appear prima facie to be barred by time, and if the suits were prima facie barred by time, then unconditional leave to defend the suits ought to have been granted. Now, one can understand the contention that if the suit appeared prima facie to be barred by time and a summons for judgment is taken out then if the defendant wants to come before the Court and point out what should have been apparent to the Court, i.e. the suit was barred by time, unconditional leave to defend the suits ought to be granted. But it is impossible to maintain in this case that the suits in this case were prima facie or other-wise barred by time. They may of course later on be found to be barred by time if it is shown after the defendants have taken advantage of the leave which has been granted that the plaintiff in the first suit is not entitled to deduct any period because even though Section 14 of the Limitation Act had application the plaintiff had not brought any proceedings the time spent in which he could claim should be deducted under the provisions of that section. Similarly the suits may hereafter be found to be barred by time if the plaintiffs cannot show that they got in their favour an acknowledgment which would save limitation. But that is not the question here. What we have got to see in finding out whether unconditional leave to defend the suit should be granted or not is, confining ourselves to the present point, whether the suits appear to be barred by time as they are, i.e. whether assuming that the facts which the plaintiffs allege. in their plaints are true it could be said that the suits are barred by time. That obviously cannot be predicated in either of the two eases.

7. The first reason which has been given why the two suits are barred by time is that Article 64A of the Limitation Act provides a special rule of limitation and under Section 20(2) of the Act that period must be given preference over the period which would otherwise be the period of limitation prescribed for the suit. But Section 29 has obviously got no application because Article 64A is not a special law. Article 64A is an article which so far as the State of Bombay is concerned replaces Article 5 of the Limitation Act. Itdoes provide a new period of limitation, namely three years, instead of the period of limitation of one year which is provided outside the State by Article 5. But the law which so 'provides it was not a special law. It amended the Act itself and instead of one article it substituted another article. The Limitation Act has now got to be read in the State of Bombay as if there was no Article 5 in it. Article 64A is to be read instead of that article. Now, it may be of course that Article 64A would have to be preferred to any other article which would provide a different period of limitation or a different starting point for the suit if Article 64A did not have any application. But that would be upon the principle that when in the Limitation Act itself there are two articles, one of which is a special one and the other a general one, the suit must be governed by the special article. But for Article 64A there would be some article which would govern the suit of the first plaintiff. That would be Article 70 or 73, but inasmuch as Article 64A provides a special article for a suit when the plaintiff wishes to file the suit under the summary procedure, that article must be given preference. But Section 29(2) of the Limitation Act has nothing to do with it.

8. It is said however that the object of the Legislature in providing for trial of certain suits in a summary way is to have a quick procedure in certain special cases and confine the procedure to these cases. But that obviously cannot come in the way of Sections 14 and 19 of the Limitation Act applying to suits under the summary procedure. Whether a suit is barred by limitation has obviously got to be considered by the Court itself whether it is filed for trial under the summary procedure or the ordinary procedure. There is nothing in the character of a summary suit which prevents the application of the Limitation Act or any particular article thereunder to a suit under the summary procedure. Indeed this is conceded, but it is contended that the suit would be barred by time under the provisions of Article 64A. 'What is there therefore in the nature of a summary suit which prevents the application of Sections 14 and 19 of the Limitation Act to it?

9. Now, it is quite true that Article 64A provides a special rule of limitation in regard to summary suits. That period is three years 'from the date when the debt or liquidated demand becomes payable...' With the other words we will not be concerned in the present case. When therefore the Court has before it a summary suit, it has got to find out whether the suit is in time filed within a period of three years from the date when the debt or liquidated de within three years from the date when the debt or liquidated demand became mand became payable. In this case it is conceded that the suit was not filed within three years from the date when the debt or liquidated demand became payable. But the plaintiff wished to rely upon the provisions of Sections 14 and 19 of the Limitation Act in order to bring his suit in time. Now, it is obvious that whether Sections 14 and 19 apply depends upon the provisions of those sections themselves. What Section 14 does is that in computing the period of limitation for filing any suit it permits the deduction of certain time. What that time is we will not be concerned with in the present ease. The dispute centres round the word 'suit'. But it is obvious that a summary suit is a suit just as a suit which is to be tried under the ordinary procedure is a suit. There is no reason why the suit which is to be tried under the summary procedure is not a suit within the meaning of the word 'suit' as defined in the Act. So far as the word 'suit' is concerned, it is common ground that the word 'suit' is defined in such a manner as not to exclude a summary suit, and indeed we would have been surprised if the word 'suit' had been defined otherwise. Similarly when we come to Section 19, of the Limitation Act, that section again would have application where before the expiration of the period prescribed for a suit an acknowledgment of liability in respect of any property or right has been made in writing signed by the party against whom such right or property is claimed or by some person through whom he derives title or liability. In that case a fresh period of limitation is to be computed from the time when the acknowledgment was so signed. Here again the word 'suit' must necessarily include a summary suit.

10. As a matter of fact if we were to accept the argument which is advanced on behalf of the defendants in these two suits, it would be difficult to apply Section 3 of the Limitation Act and it would not be permissible for a Court to dismiss the suit which appears to be barred by time as a summary suit and call upon the plaintiff to take it or order that it should be taken to the ordinary side. Now, it is pointed out that in Section 3 of the Limitation Act the words which are used are 'every suit'. But that does not make any difference. A summary suit does not come within the word 'every'. If at all it must come under the word 'suit'. Similarly a summary suit must necessarily come under the word 'suit' in the sense in which it is used in Sections 14 and 19 of the Act. In that case Section 3 of the Limitation Act makes the dismissal of the suit subject to the provisions of Sections 4 to 25 inclusive. There is no substance therefore in the contention that Sections 14 and 19 have no application to suits which are filed with a view that they should be tried under the summary procedure under the provisions of Order XXXVII, Rules 1 and 2, of the Civil Procedure Code.

11. It is true that the Legislature intends that suits falling under the description Order XXXVII, Rule 2, in Courts mentioned in Order XXXVII, Rule 1, should be tried by the summary procedure described in Order XXXVII. But holding thatss. 14 and 19 of the Limitation Act have application to such suits would not add any length to the procedure which would otherwise be followed. The essence of that procedure is that the plaintiff who files a suit tinder that procedure is entitled to take out a summons for judgment and upon that summons a judgment must follow unless the defendant applies for and obtains leave to defend. But a plaintiff, who claims that his suit is in time even as a summary suit as heis entitled to deduct certain time under the provisions of Section 14 of the Limitation Act or an acknowledgment gives him a fresh period of limitation, is entitled to a summons for judgment as under the provisions of Order XXXVII, Rule 2, the Court must take the facts mentioned in the plaint as proved. The defendant may of course apply for leave to defend inter alia on the ground that the plaintiff is not entitled to deduct any period under the provisions of Section 14 of the Limitation Act or on the ground that there is no acknowledgment in his favour giving him a fresh period of limitation. But if he does so the Court will have to find out whether leave should be granted to the defendant to take these defences in the same way as it has to find whetherleave should be granted to him to take other defences. If it refuses leave, a judgment would follow and there is no lengthening of procedure. One could have understood the argument that it could not possibly have been intended that Sections 14 and 19 of the Limitation Act should apply to the suit filed for trial under the summary procedure if holding so would have required investigation of facts before the judgment followed on the summons for judgment. But if under Order XXXVII, Rule 2, all the facts mentioned in the plaint upon which reliance was placed for bringing the suit in time after application of the provisions of Sections 14 and 19 were to be taken to be admitted unless the defendant was given leave to defend, there would be no lengthening of the procedure if leave to defend was refused. If, on the other hand, the Court gives leave, the suit will be transferred to the ordinary side just as it would be if leave is granted to the defendant to take other defences. But in no case would the procedure be longer. In any case the plaintiff would be no worse off than he would be if we were to hold that he must file his suit on the ordinary side and defendant could hardly make a grievance if the duration of the suit is prolonged.

[The rest of the judgment is not material to the report].


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