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Magundappa Neelappa Kori Vs. S.C. Javali - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 688 of 1961
Judge
Reported inAIR1965Kant237; AIR1965Mys237; (1964)1MysLJ202
ActsIndian Limitation Act - Schedule - Articles 90, 97 and 120; Code of Civil Procedure (CPC), 1908 - Order 7, Rule 6 - Order 14, Rule 2
AppellantMagundappa Neelappa Kori
RespondentS.C. Javali
Excerpt:
.....also have jurisdiction to try the suit. - 76 of 1949 in the court of the district judge at dharwar had failed to conduct the same and declined to return the amounts received by him. 357 of 1959 in the court of the district judge without any success. in the meanwhile the defendant shifted to bombay to practice there as an advocate and failed to appear in the appeal before the district court though he had undertaken to do so. the learned trial judge has held that under article 90 of the indian limitation act the plaintiff should have filed his suit within three years from the aforesaid date, when the failure of the defendant to appear in the appeal due to negligence became known to him. in the present case, the claim is founded upon a breach of contract of service as the defendant failed..........was liable to be dismissed on that point alone. this was opposed by plaintiff. but the learned trial judge granted the application and framed certain issues pertaining to the question of limitation on 3-3-1959. on the basis of the averments made in the plaint the learned civil judge came to the conclusion that the suit was governed by article 90 of the indian limitation act, that there was no acknowledgement of his liability by the defendant and that the claim of the plaintiff was barred by limitation. he dismissed the suit with costs. in the appeal by the plaintiff the learned district judge agreed with the trial court in holding that the proper article of limitation applicable to the case was article 90. he, alternatively, considered that even if article 97 was held to govern the.....
Judgment:

(1) The appellant instituted Long Cause Civil Suit No. 133 of 1958 in the Court of the Joint Civil Judge, Junior Division, Dharwar against the respondent for recovery of Rs. 336 alleging that the latter whom he had engaged as his Pleader in Civil Appeal No. 76 of 1949 in the Court of the District Judge at Dharwar had failed to conduct the same and declined to return the amounts received by him. The defendant respondent resisted the suit on various grounds. The suit was tried on preliminary issues pertaining to the plea of limitation set up by the defendant and was dismissed by the learned Civil Judge as being barred by time under Art. 90 of the Indian Limitation Act. The plaintiff then filed Civil Appeal No. 357 of 1959 in the Court of the District Judge without any success. In the present appeal Shri H.F.M. Reddi the learned Advocate appearing for the appellant submitted that the trial Court had erred in disposing of the suit without recording evidence on all the points arising in this case, that the Courts below had erred in applying Art. 90 or Art. 97 of the Limitation Act and that the proper article applicable to the suit was Art. 120 of the Limitation Act. He also submitted that the Courts had erred in holding that there was no valid acknowledgment of the claim so as to extend the period of limitation.

(2) The facts material to the appeal are as follows: The appellant instituted Long Cause Suit No. 328 of 1947 against one Chenbasappa Shivappa Navalur in the Court of the Civil Judge at Dharwar and first engaged Mr. Bongalae a pleader practising at Hubli on his behalf. Subsequently, on the advice of one Narayanappa Kulkaeni, the plaintiff engaged the defendant who was then practising as a pleader in Dharwar. The plaintiff's suit was decreed in the trial Court. In the appeal preferred by the defendant in that suit he again engaged the present defendant as his pleader. The plaintiff alleged that he had paid Rs. 200 as fees for the suit, Rs. 101 as inam and Rs. 110 towards fees in the appeal. He further paid Rs. 25 to the defendant by a cheque dated 21-8-1948 drawn on the Canara Bank, Hubli and a sum of Rs. 100 towards the balance of the fees on 4-1-1951. The defendant declined to pass a receipt for the last payment or to make a note of the same below the earlier receipt.

In the meanwhile the defendant shifted to Bombay to practice there as an Advocate and failed to appear in the appeal before the District Court though he had undertaken to do so. The plaintiff was required to engage another pleader for the conduct of the appeal. He then made an application on 14-1-1956 to the Chairman of the Bar Council of the High Court of Judicature at Bombay for suitable action against the defendant and for directing him to refund the fees which he had received towards the appeal and the amount of inam. In his written statement dated 29-2-1956 filed before the Bar Council the defendant admitted the receipt of Rs. 100 or so towards his fees in appeal and put forward evasive pleas in other respects, throwing the entire burden on his deceased clerk Veerappa Dambal. The Bar Council informed the plaintiff by its letter dated the 13th of April 1956 that they could not take any action against the defendant.

The plaintiff then issued a number of notices and filed a suit on 16-4-1958 claiming Rs. 101 and Rs. 110 paid respectively towards inam and part of the fees in the appeal on 11-4-1949, Rs. 25 paid by cheque on 21-8-1948 and Rs. 100 paid in cash on 4-1-1951 towards the balance of fees in the appeal. In his lengthy written statement the defendant did not specifically state what sums were paid to him on 11-4-1949 but simply pleaded that he did not admit the correctness of the amount of Rs. 411 or the details thereof. According to him, Rs. 25 were paid for sundry expenses. He denied to have received Rs. 101 towards his fees or inam. He admitted the receipt of Rs. 100 as part payment of his fees in appeal in which he appeared on certain dates. He pleaded that the plaintiff had availed himself of his professional services in two or three other matters and that nothing was due to him.

(3) In the trial Court the defendant filed an application (Ex. 22) on 23-1-1959 praying that a preliminary issue on the point of limitation being framed and set down for hearing as the suit was liable to be dismissed on that point alone. This was opposed by plaintiff. But the learned trial Judge granted the application and framed certain issues pertaining to the question of limitation on 3-3-1959. On the basis of the averments made in the plaint the learned Civil Judge came to the conclusion that the suit was governed by Article 90 of the Indian Limitation Act, that there was no acknowledgement of his liability by the defendant and that the claim of the plaintiff was barred by limitation. He dismissed the suit with costs. In the appeal by the plaintiff the learned District Judge agreed with the trial Court in holding that the proper Article of limitation applicable to the case was Article 90. He, alternatively, considered that even if Article 97 was held to govern the facts of the case, the claim was still barred by limitation. He accordingly dismissed the appeal but directed the parties to bare their costs.

(4) In the appeal, the first point argued on behalf of the appellant is that the trial Court should not have disposed of the suit without recording evidence on all the issues as even the question of limitation depended on elucidation of certain facts from the defendants. There is no force in this contention. It is unfortunate that the plaint has drafted and filed in the trial Court was patently defective as it contained no statement of the grounds as required by Order VII Rule 6 of the Code of Civil Procedure to show how the claim was in time. There was, however, a statement that the law of limitation was not applicable to the claim in suit. That was not wisely pressed. The learned Civil Judge ought to have called upon the plaintiff to submit a concise statement of the grounds on which he claimed exemption from the bar of limitation.

(5) The argument that the suit should not have been disposed of on the question of limitation without recording evidence on other points, has no force in the context of the facts of the present case. It is open to the trial Court under Order XIV Rule 2 of the Code, where issues of law and of fact arise in a suit, to frame issues of law and determine them first if it is of the opinion that the case or any part thereof can be disposed of on the issues of law only. In his memo of appeal filed in the District Court the plaintiff did not raise the present contention. In the circumstances of the present case the learned trial Judge was justified in deciding the questions relating to the limitations on the strength of the averments in the plaint and the contents of the written statements filed by the defendant before the Bar Council at Bombay, which was relied upon by the plaintiff, as containing an acknowledgement of his liability to pay. The written statement filed by the defendant before the Bar Council, which was produced in the suit, was filed by him on 29-2-1956.

The defendant has not expressly or impliedly acknowledged his liability to pay any of the sums claimed in the suit. Mr. Reddi the learned Advocate for the appellant has not been able to point out to any passage in that statement as amounting to an acknowledgement of liability. That apart, the alleged acknowledgement of liability would not have helped the plaintiff for computing a fresh period of limitation since it was not made, as I shall presently show, before the expiration of the period prescribed for the suit.

(6) The averments made in the plaint indicate that according to the plaintiff, the defendant neglected to conduct his appeal on 4-12-1951 when it was finally heard. The cause of action, if any, for the return of the amounts claimed by the plaintiff accrued to him on that date. The learned trial Judge has held that under Article 90 of the Indian Limitation Act the plaintiff should have filed his suit within three years from the aforesaid date, when the failure of the defendant to appear in the appeal due to negligence became known to him. Article 90 is a residuary article governing 'other suits by principals against agents for neglect or misconduct'. It is not disputed that a Pleader engaged in suit occupies the position of an agent of the party engaging his services. This High Court has taken that view in Sakarappa Neelappa v. Shidramappa Gangappa, 1959 Mys. L Jour 683 : (AIR 1960 Mys. 217). In saw Hla Pru v. S.S. Halkar, AIR 1932 Rang 1, it has been laid down that a suit in which damages for negligence are claimed by a client against an Advocate is governed by Article 90 of the Limitation Act.

In that suit it was alleged that the respondent-Advocate had been negligent in the conduct of the suit in as much as he had not bestowed proper care and attention in the drawing up of compromise decree, which deprived the plaintiff of his legitimate right to passed mesne profits. The same view has been taken by a Full Bench of that High Court in Anamalai Chettiyar v. Cowasjee, AIR 1938 Rang 258 (FB). In my opinion the claim in the present case is obviously governed by this Article as the plaintiff has founded his right to a return of the amounts paid by him on the ground of negligence of the defendant in failing to appear and conduct the appeal. Obviously Article 97 has no application to the facts of the present case as the Article is applicable only to a suit for money paid upon an existing consideration, which afterwards fails. Normally, that Article can be called to aid where a transaction for which money has been paid is subsequently found to be invalid or impossible of performance as a result of the conduct of the defendant.

In the present case, the claim is founded upon a breach of contract of service as the defendant failed to appear and conduct the appeal. It is not a case of repudiation of contract to conduct the appeal. It is well-established that where there are two articles which may possibly govern a case, the one more general and the other more particular and specific, the later Article, ought to be applied. Hence the view taken by the District Judge that Article 97 might apply to the facts of the case, is erroneous.

(7) Mr. Reddy for the appellant submitted that the proper article applicable to the suit was Article 120 which prescribes a period of six years computable from the date when the right to sue accrues. That is a residuary Article in respect of 'a suit for which no period of limitation is provided elsewhere in this schedule'. No authority has been cited in support of the preposition that Article 120 applies to a claim by a client against an Advocate for recovery of fees paid by him or for damages.

(8) In the result, the appeal fails and is dismissed. Parties to bear their costs.

(9) Appeal dismissed.


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