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Ramakrishnayya Vs. State of Mysore by Its Chief Secretary - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKarnataka High Court
Decided On
Case NumberAppeal No. 211 of 1961
Judge
Reported inAIR1967Kant247; AIR1967Mys247; (1967)2MysLJ464
ActsLimitation Act, 1908 - Sections 14 and 14(1) - Schedule - Article 115
AppellantRamakrishnayya
RespondentState of Mysore by Its Chief Secretary
Appellant AdvocateT.S. Ramachandra, Adv.
Respondent AdvocateK.S. Ramdas, Adv.
Excerpt:
.....2. the contention of the plaintiff was that the suit was saved by section 14 of the limitation act since between 1950 and 1959 the plaintiff was prosecuting with due diligence another suit in the high court of bombay on the original side for identical relief......that final order could not be granted. mr. ramachandra's submission was that the withdrawal of the suit on november 1, 1955, did not really end in a withdrawal and that the matter must still be deemed to be pending in the high court of bombay since the concerned attorneys had not drawn up the final order, which, under the rules of the original side of the high court of bombay was obligatory4. so it was maintained that from the year 1950 until today the time spent by the plaintiff in the high court of bombay has to be excluded under section 14 of the limitation act, and that if that is done the suit brought on november 23, 1959. in the court below would be within time5. it may be that no formal final order was drawn up by the concerned attorneys in the high court of bombay, and that.....
Judgment:

Somnath Iyer, J.

1. This is an appeal by a plaintiff whose suit for the recovery of a sum of Rs. 88,000 as damages for breach of contract was dismissed by the Civil Judge on the ground that it was a time barred sult. It is undisputed that the cause of action for the suit arose on August 3, 1948, and that the suit was instituted in the Court below only on November 23, 1969. So, if nothing else could be said about it, the suit instituted more than three years after the cause of action arose was clearly barred by limitation, not having been brought within the period of three years prescribed by Article 116 of Schedule 1 to the Limitation Act, 1908

2. The contention of the plaintiff was that the suit was saved by Section 14 of the Limitation Act since between 1950 and 1959 the plaintiff was prosecuting with due diligence another suit in the High Court of Bombay on the original side for identical relief. It was stated that that suit in the High Court of Bombay was withdrawn on November 1, 1915, on the ground that there was a defect of jurisdiction which constituted an impediment to the trial of that suit by that High Court.

3. Mr. Ramachandra on behalf of the plaintiff produced before us a communication addressed to the plaintiff on August 30, 1958, by the High Court of Bombay in which it was stated that no final order had yet been drawn by the concerned attorneys in the suit which was instituted in the High Court of Bombay and that for that reason a certified copy of that final order could not be granted. Mr. Ramachandra's submission was that the withdrawal of the suit on November 1, 1955, did not really end in a withdrawal and that the matter must still be deemed to be pending in the High Court of Bombay since the concerned attorneys had not drawn up the final order, which, under the rules of the original side of the High Court of Bombay was obligatory

4. So it was maintained that from the year 1950 until today the time spent by the plaintiff in the High Court of Bombay has to be excluded under Section 14 of the Limitation Act, and that if that is done the suit brought on November 23, 1959. In the Court below would be within time

5. It may be that no formal final order was drawn up by the concerned attorneys in the High Court of Bombay, and that therefore a copy of the final order sought by the plaintiff could not be granted to him. But the fact that no such final order was formally drawn by the attorneys does not mean that during the period subsequent to November 1, 1955. On which date the plaintiff withdrew his suit in that High Court, he could be regarded as prosecuting with the diligence another civil proceeding in the High Court of Bombay within the meaning of Section 14(1). The time that could be deducted under sub-section isthe lime occupied by the plaintiff in the prosecution of another civil proceeding with due diligence. But once the suit was withdrawn before the High Court of Bombay, it cannot reasonably be suggested that there was a prosecution of that suit even after it was withdrawn, or, that there was any due diligence in its prosecution by the plaintiff Soon after that suit was withdrawn, the plaintiff was at liberty to institute another suit in the Court which had the jurisdiction to try it and there was no impediment to such institution. There was no need for him to await the preparation of Ihe final order by the concerned attorneys in the High Court of Bombay

6. That being so, the case is not one in which any deduction of lime could be claimed under Section 14(1) of the Limitation Act. If no such deduction is claimable, then the suit instituted before the Civil Judge was plainly time barred and it was rightly dismissed on that ground.

7. So we dismiss the appeal without making any direction in regard to costs.

8. Appeal dismissed


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