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Shiv Shiv Tewari Vs. Ganesh Prasad Misra and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 123 of 1963
Judge
Reported inAIR1978All117
ActsLimitation Act, 1963 - Sections 14; Code of Civil Procedure (CPC) , 1908 - Order 7, Rules 6 and 10(2)
AppellantShiv Shiv Tewari
RespondentGanesh Prasad Misra and ors.
Advocates:A.N. Trivedi, Adv.
DispositionAppeal allowed
Excerpt:
.....averment made why it was being presented one day after expiry of limitation - endorsement on plaint by munsif that plaint was being returned for presentation in proper court - endorsement considered as part of plaint - held, petitioner was entitled to benefits of section 14. - - since the defendants failed to repay the loan a suit for the said relief was filed. the aid of section 14 aforesaid was resorted to before me as well. section 14 of the act 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 a court of appeal against the defendant, shall be excluded, where the proceeding is founded upon the same cause..........it may be mentioned here that the limitation for filing the suit expired on 13-4-1959. thus the suit filed in the court of munsif south on 14-4-1959 was barred by one day.7. it was urged that it was a fit case where benefit of section 14 should have been given to the plaintiff inasmuch as the plaintiff had prosecuted the suit in the court of munsif north, lucknow with due diligence and without bad faith, and the time from 11-4-1959 to 14-4-1959 should be excluded. the trial court had conceded to this submission, but the appellate court declined to do so on the ground that the plaintiff had failed to comply with the mandatory requirement of rule 6 of order vii, c.p.c. inasmuch as the plaint did not show the ground upon which the exemption from the law of limitation was claimed. rule 6.....
Judgment:

T.S. Misra, J.

1. This appeal by the plaintiff arises out of a suit for recovery of Rs. 600/- from the defendants by sale of the mortgaged property. The plaintiff alleged that the defendants had obtained a loan of Rs. 600/- from him and had executed a deed of usufructuary mortgage mortgaging with possession certain properties detailed and described in the plaint. The mortgage deed was executed on 3-4-1942 and the time fixed for payment under the mortgage was five years. Since the defendants failed to repay the loan a suit for the said relief was filed.

2. The suit was resisted by the defendants on a number of grounds, one of them being that the suit was barred by time. The trial court held that the suit was filed within limitation, it also accepted the contentions raised by the plaintiff and repelled the allegations made by the defendants. The suit was accordingly decreed for Rs. 600 against the defendants and a preliminary decree was ordered to be passed accordingly.

3. Against that decision the defendants preferred an appeal. The appellate Court below concurred with the trial court that the defendants had borrowed a sum of Rs. 600 from the plaintiff, but it held that the suit was barred by time. It seems that benefit of Section 14 of the Limitation Act was sought for by the plaintiff. That benefit was allowed by the trial court but was disallowed by the appellate Court below. The appeal was accordingly allowed and the suit was dismissed as being barred by time. The plaintiff has now come up to this court on Second Appeal.

4. For the appellant it was urged that the appellate Court below had erred in holding that the suit was barred by time and it also erred in not giving him the benefit of Section 14 of the Limitation Act. The aid of Section 14 aforesaid was resorted to before me as well. Section 14 of the Act 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 a 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 in entertain it.

5. In order to invoke the provisions of Section 14 of the said Act the following conditions have, therefore, to be satisfied:--

(i) The plaintiff must be shown to have prosecuted another civil proceeding in another Court against the defendant with due diligence.

(ii) The proceedings should relate to the same matter in issue.

(iii) The proceeding in the former Court must have been prosecuted in good faith.

(iv) The former Court was unable to entertain the suit for want of jurisdiction or other cause of the like nature.

6. In the case in hand the plaintiff had initially filed the plaint in the Court of Munsif North Lucknow on 11-4-1959 against the defendant-respondents. The Munsarim made his report on the said plaint on 11-4-1959 to the effect that the suit did not lie within the jurisdiction of the Court whereupon an order was passed by the Court on 11-4-1959 for return of the plaint for presentation to proper court as the suit did not lie within the jurisdiction of the Court. There is an endorsement on the plaint to the effect that the plaint was actually returned to the plaintiff on 14-4-1959. Thereafter it was filed by the counsel for the plaintiff in the Court of Munsif South, Lucknow on 14-4-1959. It may be mentioned here that the limitation for filing the suit expired on 13-4-1959. Thus the suit filed in the Court of Munsif South on 14-4-1959 was barred by one day.

7. It was urged that it was a fit case where benefit of Section 14 should have been given to the plaintiff inasmuch as the plaintiff had prosecuted the suit in the Court of Munsif North, Lucknow with due diligence and without bad faith, and the time from 11-4-1959 to 14-4-1959 should be excluded. The trial court had conceded to this submission, but the appellate Court declined to do so on the ground that the plaintiff had failed to comply with the mandatory requirement of Rule 6 of Order VII, C.P.C. inasmuch as the plaint did not show the ground upon which the exemption from the law of limitation was claimed. Rule 6 of Order VII, C. P. C, requires that where the suit is instituted after the expiration of the period prescribed by law of limitation the plaint shall show the ground Upon which exemption from such law is claimed.

8. It was pointed out by the Supreme Court in Sant Lal Mahton v. Kamla Prasad (1952 All LJ 46) : (AIR 1951 SC 477) that the legislature has expressly declared in Section 3 of the Limitation Act that whether the defence of limitation be pleaded or not, the Court is bound to dismiss a suit which is brought after the period provided therefor in the First Schedule to the Limitation Act. If the plaintiff's right of action is apparently barred under the statute of limitation, p. VII, Rule 6 of the Code makes it his duty to state specifically In the plaint the grounds of exemption allowed by the Limitation Act upon which he relies to exclude its operation and if the plaintiff has got to allege in the plaint the facts which entitle him to exclude its operation these facts obviously must be in existence at or before the time when the plaint is filed. The provisions of Rule 6 of Order VII, C.P.C. are mandatory in nature and whenever a plaintiff wants to seek exemption from the operation of law of limitation he must expressly state in the plaint the grounds on which exemption is sought for.

9. It has now to be seen whether the plaintiff has complied with this requirement of law. A bare perusal of the plaint would disclose that no specific averment has been made by the plaintiff in the body of his plaint on which exemption from the law of limitation is sought for. There is, however, an endorsement on the plaint made by the Munsif North, Lucknow. It is dated 14-4-1959. From the endorsement it appears that the suit was instituted on 11-4-1959. The order on plaint was made on 11-4-1959. and the plaint was actually returned on 14-4-1959 for presentation to proper court.

10. The learned counsel for the appellant submitted that this endorsement being made on the plaint should be deemed to be a part of the plaint and, therefore, the plaintiff should not be penalised for not having specifically stated the grounds on which exemption was sought for as required in Rule 6 of Order VII, C.P.C. Rule 10 of Order VII, C.P.C. says that subject to the provisions of Rule 10A the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted. Clause (2) of Rule 10 of Order VII, C. P. C. requires that on returning a plaint the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it.

11. In compliance with the provisions of Rule 10 (2) of Order VII, C.P.C. the learned Munsif North. Lucknow made the necessary endorsement on the plaint while returning the plaint to the plaintiff. This endorsement is, therefore, in my view a part of the plaint itself and can be looked into for the purposes of Section 14 of the Limitation Act. The plaintiff had examined Ganesh Prasad, Advocate as P. W. 3. He had filed the plaint in the Court of Munsif North and though the order for the return of plaint was made on 11-4-59 the plaint was not returned to him till 14-4-59. He further stated that he had been visiting the officer for taking back the plaint which could not be returned to him before 14-4-59. The plaintiff had examined the counsel to show that he did not file the suit in bad faith in the Court of Munsif North. On the contray his counsel first filed the plaint in the Court of Munsif North Luckuow and thereafter as soon as it was returned to him he filed the same in the Court of Munsif South on the same date. It could not therefore, be said that the plaintiff was not prosecuting the case with due diligence or in good faith. The conditions of Section 14 were, in my view, fully satisfied in the case and the plaintiff was, therefore, entitled to the benefit of that section. The trial court had, as pointed out earlier, given the benefit to him, but the appellate court below refused to do so. In my view, the plaintiff was entitled to the benefit of Section 14, Limitation Act, hence the time spent from 11-4-59 to 13-4-1959 shall be excluded while calculating the period of limitation. In doing so, the suit would be within limitation. The appellate court below was, therefore, not correct in holding that the suit was barred by time.

12. Both the courts below have found that the defendants were liable to pay the amount claimed by the plaintiff in the suit In the circumstances, the suit ought to have been decreed. In the result, the appeal is allowed with costs. The decree passed by the appellate Court below is set aside and the decree passed by the trial court is restored.


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