1. This appeal has arisen out of a suit brought by the plaintiff-appellant for arrears of rent for 1329-1334-F and for the appointment of a receiver in terms of the relief claimed in the plaint. The suit was originally instituted in the Court of the Munsif, Fatehpur. One of the pleas taken in defence was that the civil Court had no jurisdiction. Another plea was that the plaintiff's suit was barred by res judicata. The Munsif did not decide the question of jurisdiction raised by the defendant, but held that the plaintiff's suit was barred by res judicata. Accordingly, he dismissed the suit. The plaintiff appealed 4o the Court of the Subordinate Judge who held that the suit was cognizable exclusively by a Revenue Court. Accordingly, the plaint was returned to the plaintiff for presentation to the proper Court. The claim for 1329 to Kharif 1330 was time barred when the suit was instituted in the civil Court. It was subsequently abandoned by the plaintiff. When the plaint was presented in the lie venue Court, the plaintiff's claim for Rabi 1330-F and Kharif 1331-F was also barred by limitation unless the benefit of Section 14, Lim. Act, could be extended to her. The plaintiff's suit was decreed by the Assistant Collector except for the years 1329 to Kharif 1331-F. He also decided some subsidiary questions. Both parties appealed to the District Judge, who confirmed the decree of the first Court subject to slight modifications, which it is not necessary to mention at this stage. He upheld the view of the first Court that the plaintiff's claim for Rabi 1330-F and Kharif 1331-F was barred by limitation. He further held that Section 14, Lim. Act, did not apply to the circumstances of the case. The plaintiff has filed the present second appeal against that part of the decree of the lower appellate Court which relates to the arrears for Rabi 1330-F and Kharif 1331-F. The defendant has filed certain cross-objections, the nature of which will be stated in a later part of this judgment.
2. The plaint, as originally framed, was very complicated. It recited the facts that Sheoratan Singh and Dayashankar Singh, plaintiffs 1 and 2, granted a lease to the defendant Phool Singh who agreed to pay a certain rent for the theka. Sheoratan Singh and Dayashankar Singh assigned their proprietary rights to Mt. Rampati Kuer, plaintiff 2, the wife of Sheo Ratan Singh, plaintiff 1. It was alleged in the plaint that one of the lessors was a minor at the time the lease was executed, while the other lessor was devoid of common sense and not capable of understanding matters. It was further alleged that the lessee did not pay out of the rent interest due to one Dwarka Prasad as he was bound to do under the lease. The whole plaint contains allegations challenging the validity of the lease. The plaintiff claimed the right to recover possession of the property to which the lease related, but she reserved liberty to sue for that relief in a subsequent suit. The relief claimed in the present suit was for recovery of what the lessee was liable to pay under the theka and for the appointment of-a receiver, who, it was prayed, should be directed to take possession of the property and to manage it during the term reserved by the lease and make payments in accordance with the stipulations contained in the lease. We have stated in detail the allegations contained in the plaint for a proper consideration of the question, whether Section 14, Lim. Act can apply to the circumstances of the case. The learned District Judge held that Section 14, Lim. Act, did not apply to cases in which the plaintiff himself withdraws a suit instituted in the wrong Court and subsequently institutes it beyond limitation in the right Court. It should be explained in this connexion that the Subordinate Judge, who disposed of the appeal from the decision of the Munsif, directed the plaint to be returned for presentation to the Revenue Court, because it was admitted on behalf of the plaintiff-appellant before him that the suit, as framed, was not cognizable by a civil Court as pleaded by the defendant. There being no controversy between the parties on the question of jurisdiction, and the Subordinate Judge himself not taking a different view, he acted on the admission of both the parties and passed his order thereon. In these circumstances it cannot be considered that the plaintiff-appellant withdrew the suit instituted in the civil Court and subsequently instituted it in the Revenue Court which ex hypothssi was the proper Court. It has not been argued before us by the learned advocate for the defendant that the civil Court had jurisdiction. We take it that the suit had been wrongly instituted in the civil Court, that both the parties admitted before the Subordinate Judge that the civil Court had no jurisdiction and that the Subordinate Judge held that the civil Court had no jurisdiction.
3. The learned advocate for the defendant-respondent has referred us to certain cases in which it was held that where a suit is withdrawn under Order 23, Rule 1, Civil P.C. with liberty to bring a fresh suit and a second suit is instituted after the expiry of limitation, though the first suit was within time, Section 14, Lim. Act, cannot apply. That view is obviously based on the language of Rule 2, Order 23, Civil P.C. which runs as follows:
In any fresh suit instituted on permission granted under the last preceding rule, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted.
4. It is clear that there is no room for the application of Section 14, Lim. Act, where Order 23, Rule 2, Civil P.C. is applicable. The law is mandatory and the Court must start with the assumption that the subsequent suit is the only suit that was instituted by the plaintiff, so that there can be no question of any other civil proceedings having been prosecuted in good faith by the plaintiff as required by Section 14, Lim. Act. In the case before us the plaintiff did not withdraw her suit with liberty to bring a fresh one and the-plaint filed in the Revenue Court was the selfsame plaint which she had previously filed in the civil Court. We are-clearly of opinion that the class of cases to which reference has been made above is wholly inapplicable and that Section 14, Lim. Act, is not inapplicable on that ground.
5. The learned District Judge seems to h& of opinion that Section 14, Lim. Act, is applicable:
only to cases where the previous suit was dismissed by the Court itself, because it was unable to entertain it.
6. There is nothing in Section 14 which warrants the proposition of law laid down by the learned District Judge. It clearly provides that
in computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in Court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.
7. The important question to decide is whether the plaintiff prosecuted another civil proceeding in good faith. It is perfectly immaterial whether such proceeding ended in an order of dismissal or in, some other order showing that the Court refused to entertain it. Cases are easily conceivable in which a party may be in doubt as to whether a suit should be instituted in a civil or a Revenue Court. If a suit is honestly and with due care and caution instituted in one of such Courts, but at a subsequent stage it is found that is wrong forum had been chosen, it cannot be doubted that if an admission to that effect be made, and the Court which has; no jurisdiction returns the plaint for presentation to the proper Court, Section 14,; Lim. Act, which is couched in comprehensive terms, will be applicable. If the, section be so restricted as to apply only to cases in which a previous suit is dismissed, it will cease to apply to a familiar class of cases in which plaints are returned without the suit being dismissed for presentation to the proper Court. We are clearly of opinion that Section 14 is not so limited and that, if the plaintiff instituted the suit in good faith in the Court of the Munsif of Fatehpur, she is entitled to the benefit of Section 14. The lower appellate Court has not expressed any opinion as to whether the plaintiff acted in good faith in instituting her suit in the civil Court. It has however observed:
It is possible that a suit framed in this mariner should have been tried by the civil Court. The point is really only of academic interest, now that the matter has reached the appellate Court, since under Section 269, Agra Tenancy Act, 1926, I have clearly the power to decide the matter in controversy upon the merits.
8. We have already stated the salient features of the plaint as originally framed and think that the plaintiff and her pleader in the Munsif's Court might well have considered that the suit was cognizable by a civil Court. If is possible so to construe the plaint as one for avoidance of the lease and for compensation for use and occupation of land. Both the parties and the Subordinate Judge however put the construction which, to say the least, is equally plausible, namely, that it is a simple suit for arrears of rent by a landholder against her the kedar and as such it is cognizable by a Revenue Court. We are of opinion that there was no want of good faith on the part of the plaintiff or her legal adviser and that the suit was prosecuted in good faith up to the time when the plaint was returned by the Subordinate Judge for presentation to the Revenue Court. It is not disputed that if the whole of the period from the institution up to the date of the return of the plaint be excluded, the plaintiff's claim for Rabi 1330 F and Kharif 1331 F is within time.
9. The result is that the plaintiff's appeal succeeds and, in addition to the amount decreed by the lower appellate Court, rent for Rabi 1330 F and Kharif 1331 F should also be decreed at the rate allowed by the learned District Judge for subsequent years. (The judgment then considered the cross-objections of defendant Phool Singh relating to certain deductions and concluded,) In view of our findings the decree of the lower appellate Court is modified in two respects : (1) The plaintiff's suit is decreed for all the years to which it relates; and (2) Rs. 100 a year instead of Rs. 100 for all the years in suit should be deducted from the amount found due to the plaintiff. The plaintiff-appellant shall have her costs from the contesting defendant Phool Singh in all the Courts.