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Firm Bulchand Chandi Ram and Co. Vs. L. Onkar Nath and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad High Court
Decided On
Case NumberF.A.F.O. No. 127 of 1955
Judge
Reported inAIR1958All166
ActsLimitation Act, 1908 - Sections 14 and 14(1); Code of Civil Procedure (CPC) , 1908 - Order 30, Rule 3
AppellantFirm Bulchand Chandi Ram and Co.
RespondentL. Onkar Nath and ors.
Appellant AdvocateGopal Behari, Adv.
Respondent AdvocateH.N. Seth, Adv.
DispositionAppeal dismissed
Excerpt:
.....the earlier suit even though it was dismissed and plaint was returned. - - 1. this is a first appeal from order which raises an interesting question of law -a question which has apparently not been decided in this court -at any rate no reported decision of this court was cited before me by counsel appearing for the parties on either side. 9. the relevant portion of section 14 of the indian limitation act is in these terms :in computing the period of limitation prescribed ior 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..........it is open to a plaintiff to sue a firm either in the firm name or in the name of the partners. a suit filed against a firm in the firm name is, in essence, a suit against all the partners so that it cannot be -contended with any force that in this particular case there was any change in the array of parties or that the two suits were not between the same parties. therefore, in my view, the second contention of mr. gopal behari is without substance. 13. in regard to the last contention of mr. gopal behari, namely whether the earlier suit could be called 'another civil proceeding' we have to see what is the meaning to be attached 'to the expression 'another civil proceeding' in section 14 of the limitation act. mr. gopal behari's contention was that it meant not only two separate.....
Judgment:

Mukerji, J.

1. This is a first appeal from order which raises an interesting question of law -- a question which has apparently not been decided in this Court -- at any rate no reported decision of this Court was cited before me by counsel appearing for the parties on either side.

2. A suit was instituted on 7th October 1946 by Lala Onkarnath as a proprietor of Firm Onkar Nath Raj Narain against Firm Bul Chand Chandi Ram and Company, through Bul Chand, one of the proprietors of the Firm Bul Chand Chandi Ram and Co., Timber Merchants situate at Hyderabad, Sind, for the recovery of Rs. 1500/- with costs. The suit was filed in the Court, of Munsii of Agra and was numbered as 894 of 1946.

An amendment to the relief was subsequently sought and the relief was amended to contain an alternative prayer to the effect that in case a decree for a specific sum was not awardable then a decree for rendition of true and correct accounts be made against the defendants in favour of the plaintiffs. Amongst other defences a defence of want of jurisdiction of the Court to try the suit was also raised.

3. The trial Court decreed the suit holding that it had jurisdiction to try the suit and. therefore, made a preliminary decree for accounts.

4. An appeal was preferred by the defendants. The lower appellate Court, on appeal, held that the question whether the Munsif at Agra had jurisdiction or not was not an easy question to decide, but nevertheless, it held that on the plaint allegations as contained in the plaint, filed, the Agra Court had no jurisdiction. Therefore, the lower appellate Court set aside the decree of the learned Munsif and directed the return of the plaint to the plaintiff for presentation to the proper Court. This order of the lower appellate Court was made on 21st September 1951.

5. On 12th May 1952 the plaintiffs refiled the plaint which had been returned to them toy the order of the appellate Court, in the Court of the Munsif, Agra. but with certain amendments, or variations in it. In the array of parties two further names were added to the array of defendants : these were the names of Bul Chand Chandi Ram Naswani and Tahl Ram Chandi Ram Naswani sons of Chandi Ram Naswani, residing at Civil Lines, near Scientific Apparatus Company Ltd., Agra. Further, a paragraph was added to the plaint which was numbered as paragraph 8-A and the contents of this paragraph 8-A were these :

'as the defendants are residing and carrying on business at Agra within the jurisdiction of this Court so this Hon'ble Court has jurisdiction to dispose of this suit.' In every other matter the plaint which was put in the second time in the Court of Munsif at Agra was the same as the plaint which had been filed in that very Court on 7th October 1946.

6. The necessity for filing the suit again at Agra arose from the fact that the defendants, namely defendants 2 and 3, who were subsequently added, by the name, in the array of defendants to the suit came to reside within the jurisdiction of the Court of Agra. At the time when the earlier suit had been filed, it appears that these defendants resided outside the jurisdiction of the Court at Agra.

The Agra Court entertained the suit and set it down for the hearing of a preliminary issue that was raised in the case, namely whether or not the suit was barred by limitation. It is the common case of the parties before me that in case Section 14 of the Indian Limitation Act applied to the facts of this case then the suit would be within time.

But if that section did not apply then the suit would be beyond the period of limitation. The trial Court held that Section 14 of the Limitation Act did not apply and it, therefore, dismissed the suit as being barred by limitation. The main reason why the learned Munsif held Section 14 of the Limitation Act not to be applicable was that in his view the earlier litigation was not a bona fide litigation.

7. An appeal was preferred against the decision of the learned Munsif by the plaintiff firm. The lower appellate Couit, on appeal, has come to the conclusion that the earlier suit was litigated bona fide between the parties and that that suit had not been entertained then because of a defect of jurisdiction and it further held that under the circumstances of the case, Section 14 of the Limitation Act applied and the plaintiffs were entitled to the benefit of extension of time during which the earlier suit, namely suit No. 894 of 1946 had been pending disposal. The lower appellate Court, therefore, set aside the order of dismissal made oy the trial Court and has remanded the case to the learned Munsif for disposal in accordant with law.

8. An appeal from order has been filed by the defendants. Mr. Gopal Behari. appearing on behalf of the appellants, contended that under the circumstances of this case Section 14 of the Limitation Act did not apply and, therefore, the plaintiff's were not entitled to the extension of time during which their earlier suit -- suit No. 894 of 1946 -- had been pending.

9. The relevant portion of Section 14 of the Indian Limitation Act is in these terms :

'In computing the period of limitation prescribed ior 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 to entertain it.'

10. It was contended by Mr. Gopal Behari that the earlier suit had not been prosecuted with due diligence nor was it a bona fide proceeding. He further contended that the parties in the two suits were not the same. He further contended that the suit that has now been, filed cannot be designated as 'another suit' within the meaning of Section 14 of the Limitation Act.

11. In regard to the first contention of Mr. Gopal Behari it is only sufficient to state that the earlier suit was fought between the parties with all due diligence with which litigations are fought in this country. The suit was, after contest, decreed by the trial Court; there was an appeal and the appellate Court came to the conclusion after considering a large number of authorities that the Agra Court had no jurisdiction and, so it set aside the decree of the trial Court and directed the return of the plaint.

12. The suit was filed against a firm, and in the first instance the suit had been filed against the firm name. When the suit was filed the second time the names of two partners of the firm were only added. No new parties to the suit were therefore added. Under Order 30, Rule 3, C. P. C. it is open to a plaintiff to sue a firm either in the firm name or in the name of the partners.

A suit filed against a firm in the firm name is, in essence, a suit against all the partners so that it cannot be -contended with any force that in this particular case there was any change in the array of parties or that the two suits were not between the same parties. Therefore, in my view, the second contention of Mr. Gopal Behari is without substance.

13. In regard to the last contention of Mr. Gopal Behari, namely whether the earlier suit could be called 'another civil proceeding' we have to see what is the meaning to be attached 'to the expression 'another civil proceeding' in Section 14 of the Limitation Act. Mr. Gopal Behari's contention was that it meant not only two separate proceedings but also that the proceeding should be in two different Courts.

It was argued that a careful reading of the section indicated clearly that, what was contemplated was that the plaintiff should have sought his remedy in two different Courts In succession. A prima facie reading of the section may create that impression but on a 'careful examination of the section it cannot be said that a plaintiff cannot refile his plaint in the same Court.

Supposing a suit with a valuation of Rs. 5000/- were to be filed in the Court of Munsif at Allahabad at a time when that Munsif could only entertain suits upto the valuation of Rs. 3000/-. The Munsif in such a case makes an order directing the plaint to be returned for presentation to a Court which had pecuniary jurisdiction over the subject matter.

Let us assume the plaint is returned on 1st January. If, on 15th January, by a notification, the pecuniary jurisdiction of that Munsif were to be raised to Rs. 5000/-, could not the plaintiff go back to the same Court and file the plaint in the Court of that very Munsif? I have been unable to see any legal bar to such action on the part of the plaintiff. A similar question came up for decision before the Judicial Commissioner of Sind, in 1921 in the case of Ibrahim v. Firm of Ghulam Hussain, AIR 1921 Sind 13 (A), when Fawcett J. C., and Raymond, A. J. C. held that Section 14 of the Limitation Act did not contemplate proceedings in two different Courts.

I am of the opinion that it is not necessary that the proceedings should be in two different Courts in order to enable the plaintiff to get the benefit of Section 14 ot the Limitation Act, nor am I of the view that the plaintiff can only get an extension under Section 14 if he were to file a separate plaint the second time and not the original plaint which had been returned to him in the same Court. Support for the view that I have taken can be found from the decision of Brijlal Geinka v. Janendra Narain, AIR 1935 Pat 82 (B).

14. For the reasons given above I have seen no force in this appeal which I dismiss, but under the circumstances of the case 1 direct the parties to bear their own costs. The stay order is discharged, the record of the case will be sent down to the Court below forthwith.


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