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Ramjiwan Mal and ors. Vs. Chand Mal and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtAllahabad High Court
Decided On
Judge
Reported in(1888)ILR10All587
AppellantRamjiwan Mal and ors.
RespondentChand Mal and ors.
Excerpt:
act xv of 1877 (limitation act), sections 5, 14 - appeal preferred to wrong court through mistake of law--exclusion of time--civil procedure code, sections 111, 216, 561--suit for dissolution of partnership--set-off--objections under section 561--dismissal of appeal as barred by limitation--objections not entertainable. - - all that we did say was that such circumstances as are therein mentioned might supply good cause within the meaning of section 5 of the limitation law. we have heard a very long and learned argument upon this particular point, and i am free to confess that at one period of the argument i entertained a very strong view different to the view of my brother mahmood, as to this suit falling within the terms of section 111 of the civil procedure code. but as has been.....straight, j.1. this appeal relates to a suit which was instituted by the plain tiffs-appellants before us in the court of the subordinate judge of azamgarh upon a plaint which, alleging a partnership as subsisting between the plaintiffs and the defendants, prayed for the following relief: ' that the plaintiffs pray the court to decree a dissolution of the partnership, and that the accounts of the said partnership trading may be taken by the court and the assets thereof realized, and that each party may be ordered to pay into court any balance due from him upon such partnership-account, and that the debts and liabilities of the partnership may be paid and discharged, and that the costs of the suit may be paid out of the partnership assets, and that any balance remaining of such assets,.....
Judgment:

Straight, J.

1. This appeal relates to a suit which was instituted by the plain tiffs-appellants before us in the Court of the Subordinate Judge of Azamgarh upon a plaint which, alleging a partnership as subsisting between the plaintiffs and the defendants, prayed for the following relief: ' That the plaintiffs pray the Court to decree a dissolution of the partnership, and that the accounts of the said partnership trading may be taken by the Court and the assets thereof realized, and that each party may be ordered to pay into Court any balance due from him upon such partnership-account, and that the debts and liabilities of the partnership may be paid and discharged, and that the costs of the suit may be paid out of the partnership assets, and that any balance remaining of such assets, after such payment and discharge and the payment of the said costs, may be divided between the plaintiffs and the defendants according to the terms of the agreement, or that if the said assets prove insufficient, the plaintiffs and the defendants may be ordered to contribute, in such proportion as shall be just, to a fund to be raised for the payment and discharge of such debts, liabilities and costs, and to such other reliefs as the Court shall think fit. The approximate value of the claim is Rs. 2,000.'

2. Now that was a suit which undoubtedly was framed and presented to the Court in contemplation of the provisions of Section 215, Civil Procedure Code. But it is unnecessary for me in dealing with the matter to which I shall have presently to advert, to make any reference to these forms of suits and the shape in which they would be regarded by a Court in England. I have simply to see how far it is governed by any other provisions in the Civil Procedure Code, and if it is governed by those provisions, to apply them.

3. A variety of pleas were raised in the statement of defence to this plaint, the only material one of which here is what in substance amounted to this, that in the taking of any accounts as between the plaintiffs and the defendants, the defendants were to have the advantage of, and to be benefited to the extent of, the sum of Rs. 23, 354-10-3, which they alleged had bean received by the plaintiffs upon their account in the course of the partnership business, and in respect of which the plaintiffs were bound to pay them that sum.

4. The Subordinate Judge who tried the case, having declared the partnership dissolved and having caused the accounts to be taken, came to the conclusion, as declared by his decree, that the defendants were entitled to receive from the plaintiffs a sum of Rs. 8,041-7-0. Consequently, there was a decree in favour of the defendants given by the Subordinate Judge by which they were declared to be entitled to the sum which I have mentioned.

5. From that decision of the Subordinate Judge, which was passed upon the 31st March 1886, the plaintiffs preferred an appeal to the Court of the Judge on the 1st July 1886, and on the 11th December of the same year, the memorandum was returned to them upon the ground that the subject-matter in dispute was more than the sum of Rs. 5,000. The memorandum of appeal was then brought by the plaintiffs and presented to this Court upon the 20th December 1886, and the appeal was admitted subject to the report, that is to Say, subject to the consideration of the Bench determining the appeal of any question as to its admissibility by reason of being beyond the limitation period.

6. Mr. Conlan to-day, when the appeal was called on, objected to our entertaining it, upon the ground that the decree of the Sub-ordinate Judge having been passed upon the 31st March, and the appeal only having been filed in this Court upon the 20th December 1886, it was barred, and we were therefore bound to dismiss the appeal.

7. On the other hand, it has been contended by Pandit Ajudhia Nath for the appellants that his clients are entitled to the indulgence which is mentioned in Section 5 of the Limitation Act. He has claimed that indulgence upon the grounds that by applying the analogy of Section 14 of the Limitation Act, and following the ruling of this Court, to which I was a party, in Balwant Singh v. Gumani Ram I. L. R., 5 All., 591, he should be allowed the period of time during which his client was bond fide prosecuting his appeal, though erroneously, before the Court of the District Judge.

8. I have only to say with regard to that ruling that it was never ruled by my brother Tyrrell, who delivered the judgment in that case, in which I concurred, that the provisions of Section 14 of the Limitation Act were to be bodily imported into Section 5 of the said Act. All that we did say was that such circumstances as are therein mentioned might supply good cause within the meaning of Section 5 of the Limitation Law. We did not say that the time during which an appeal has been preferred and pending in a wrong Court shall be excluded for the purposes of calculating time, but we did say that it may be excluded for the purposes of the indulgence as explaining the delay in bringing the appeal to the right Court.

9. Out of this contention of Pandit Ajudhia Nath has arisen a serious question, and one that presses my brother Mahmood very much, namely, the question of jurisdiction, that is to say, of whether, looking to the terms of this plaint and to the terms of the statement of defence, the decree which was given by the Subordinate Judge was a decree which was necessarily appealable to this Court and not to the Court of the District Judge. We have heard a very long and learned argument upon this particular point, and I am free to confess that at one period of the argument I entertained a very strong view different to the view of my brother Mahmood, as to this suit falling within the terms of Section 111 of the Civil Procedure Code. My reason for that was that it appeared to me, looking at it from the point of view of an ordinary suit for dissolution of partnership, that it was not a suit for the ' recovery of money' in the ordinary sense of the term. But as has been pointed out by my brother Mahmood, this class of suits as mentioned in Section 111, Civil Procedure Code, as suits for the recovery of money, is a class of suits in contradistinction to suits for the recovery of immoveable property, restitution of conjugal rights and the like, and it contemplates a class of cases in which or out of which a money claim arises. He has gone so far with me that he admits that a mere suit for dissolution of partnership would not be a suit for money, nor possibly would a suit asking for a declaration that an account should be taken. But when the plaint goes on and says: ' Take the accounts and when you have made up the accounts of this partnership, if anything is due upon those accounts, give me what is due to me,'--then that is in fact a claim for money and nothing else. I agree that that may be so. The suit upon the face of it in all its aspects is a suit for recovery of money, because the plaintiff says, 'when you have taken the accounts, if anything is due to me, be good enough to direct that it be paid to me.'

10. What is then the nature of the paragraph of the statement of defence to which I have referred? That is not a general assertion on the part of the defendants in which they say to the Court taking this account that some balance will be found in their favour on the taking of accounts, but it says in specific terms that 'in any event in taking that account you must give us credit for the sum of Rs. 23,354-10-3, because that actual sum has been received by our partners, which we ought to have received, and which has been misappropriated by them.'

11. I cannot say that a sum claimed in that way is not a sum claimed in the nature of a set-off. That is to say, the defendants say: ' Whatever may be found due to the plaintiffs upon settlement of accounts, that must be reduced by Rs. 23,354-10-3 as the amount they owe to us, and if that is not sufficient they must pay the balance.' I do not think that under these circumstances I am straining construction here to hold that this is a claim for money by the plaintiffs in which the defendants plead a set-off. If I am correct in that view, then any further difficulty in the matter ceases, because it is specifically provided by Section 216 of the Civil Procedure Code that in matters of this kind, where a set-off has been claimed and a decree has been passed in favour of the defendant, the amount of that decree in the defendant's favour determines the forum of appeal. The decree of the Subordinate Judge, being for a sum in excess of Rs. 8,000 in favour of the defendants, it is obvious therefore that the appeal of the plaintiffs did, according to the terms of Section 216 of the Civil Procedure Code, lie to this Court and not to the Court of the District Judge, and in going to that Court they made a mistake of law, for which, according to the ordinary rules, they are not entitled to be excused.

12. It has been argued on behalf of the appellants that looking to the difficulty of the question which has involved us in so much discussion here, this is another indication that their action in going to the District Court should be regarded as a not unreasonable mistake, and that they, though acting erroneously, acted with perfect bond fides in the matter. It does not appear to me that there is any adequate or sufficient explanation offered here to us to justify us in extending the indulgence mentioned in Section 5 of the Limitation Act. They are supposed, or those who advise them are supposed, to know the provisions of the statute, and to be aware that under its terms, if an appeal is preferred, it has to be preferred to a particular Court. It is no excuse merely to say that they preferred their appeal to a wrong Court by mistake. As regards the interval of time which elapsed between the 11th December, when the memorandum was returned, and the 20th December, when it was presented to this Court, the case is absolutely bare of any explanation at all as to that delay. Under all the circumstances I am of opinion that it has not been made out to my satisfaction that the appellants acted bond fide in this matter, or that they have shown any good cause for granting them the indulgence mentioned in Section 5 of the Limitation Act. That being so, I have come to the conclusion that the objection of Mr. Conlan to the hearing of this appeal is entitled to succeed, and the appeal must be and is dismissed with costs.

Mahmood, J.

13. I have arrived at the same conclusion as my learned brother. But because in the course of the argument upon the preliminary point raised by Mr. Conlan in this case as to the hearing of the appeal, there was not full accord between the view which I was inclined to take of the case and that which my learned brother was inclined to take, I think it necessary to state the exact reasons why I have arrived at the same conclusion.

14. So far as the preliminary point is concerned, the arguments of Mr. Conlan, on the one hand, and that of Pandit Ajudhia Nath, on the other, raise two questions for consideration, both questions being only part and parcel of one and the same point, that is, whether this appeal has been presented within the time provided by Article 156, seh. ii, Limitation Act, and whether the provisions of Section 5 of the Limitation Act would justify us in extending the ordinary period of limitation. The decree from which this appeal has been preferred was a decree passed on the 31st March 1886, and this appeal was not preferred to this Court till the 20th December 1886, that is to say, long after the period of limitation provided by the article to which I have referred. It is clear that in administering the rule of limitation we are bound to administer it in two manners only, either as a lax system, the periods of limitation to be held in terror cm over the heads of the litigants and to be modified, varied or fluctuating according to the individual views or wishes of the Judges, or as definite rules of law, giving to the population for whom those laws have been framed a guarantee that after a lapse of a certain period they may rest in peace and rely upon titles or other rights which they have acquired. This is a matter upon which many judgments have been delivered in England and other civilised countries. In India the question as to the exact manner in which such statutes should be administered was, no doubt, fully considered by the Legislature in framing Section 4 of the Limitation Act, which gave expression not to a modifiable, variable or fluctuating rule, but to a very definite rule, namely, ' every suit instituted, appeal presented, and application made, after the period of limitation prescribed there for by the second schedule hereto annexed, shall be dismissed, although limitation has not been set up as a defence.' That rule, stringent as it is, is subject to the other provisions of the enactment, among which Section 5 is no doubt an important provision. It was in connection with the manner in which the statutes of limitation should be interpreted that, in delivering my judgment in the case of Mangu Lal v. Kandhai Lal I. L. R., 8 All., 475, I went out of my way to give as definite an expression as I could to the view, following the language of Mr. Justice Story, that statutes of limitation were statutes of repose and that they should be administered, not in a variable manner, but as strictly as possible, in order to strengthen the repose at which they aim. That same ratio was the reason why in the case of Husaini Begam v. The Collector of Muzaffarnagar I. L. R., 9 AIL, 11, I applied the period of limitation as against a Muhammadan pardah-nashin lady who had not chosen to come within the proper period. In that case I had the misfortune to differ with my learned colleague, but the judgment which I delivered was upheld in appeal I. L. R. 9 All., 655.

15. To the views which I then expressed I still adhere; and in determining this case I shall base my judgment upon the solitary question whether or not the present appellants have preferred this appeal within time, even taking the indulgence of the provisions of Section 5 into account. Now it has been argued on behalf of the appellants by Pandit Ajudhia Nath upon the authority of the ruling to which my learned brother has referred in Balwant Singh v. Gumani Ram I. L. R., 5 AIL, 591, that the provisions of Section 14 of the Limitation Act are virtually imported into Section 5 of the Limitation Act, and that when there has been a bond, fide prosecution of a case in a Court having no jurisdiction, such circumstance ipso facto amounts to a rule of protection with reference to such eases, so as to entitle the appellants to deduct from the period of limitation such period as has been spent in litigation in a wrong Court. My brother Straight has already stated that that is not the effect of that ruling, and I do not understand it to amount to anything more than this, that the considerations mentioned in Section 14, Limitation Act, are or may be elements for consideration whether the delay is or is not to be excused within the meaning of Section 5 of the Limitation Act. Beyond that I am not prepared to go, because I hold that the provisions of Section 14 are not applicable to limitation for appeals, bat to limitation for original suits and applications. If I were to hold otherwise, I should be crediting the Legislature with a surplusage, namely, the surplusage of framing Section 5 notwithstanding Section 14.

16. The question then is, is this appeal barred by limitation or not; and for the purposes of determining this, there is no doubt that, even giving the appellants the benefit of such analogical principles as are contained in Section 14, we have to determine whether or not the action of the present plaintiffs-appellants ingoing to the Court of the District Judge of Azamgarh was or was not a bond fide one. The expression, bond fide, which is translated in English as ' good faith,' is not exhaustive, and is defined in the last part of Section 3 of the Limitation Act, where it is said ' nothing shall be deemed to be done in good faith which is not done with due care and attention.' Did the plaintiffs in this case act with due care and attention when they in this suit, notwithstanding the fact that the decree was for an amount exceeding Rs. 8,000, went up to the District Judge, instead of coming up in first appeal to this Court, from the decree of the 31st March 1886? Indeed, Pandit Ajudhia Nath on behalf of the appellants conceded, and he could not well do otherwise, considering that the order whereby the appeal was returned by the District Judge to the appellants was never contested in any proceeding, and that this appeal has been finally preferred to this Court, that the appeal would lie to this Court, and that this Court was the proper Court to entertain such an appeal.

17. In connection with the question of bond fides, however, the learned pleader has argued that the provisions of Section 14 of the Limitation Act are so broad as to include within their scope, not only mistakes of fact, but also mistakes of law. The learned pleader has gone the length of contending that in the present case, although the appeal would lie here, it was an innocent mistake made by the appellants to go to the Court of the District Judge with their appeal.

18. I am of opinion that, so far as this contention concerns mistakes of law, the authority of the maxim, Ignorantia legis neminem exeusat, has been so formally settled both in England and India that it would be the shaking of established authority to maintain that ignorance of law or mistakes of law are reasons for the excuse, and, as such, furnish elements for extending the period of limitation which the statute law has provided.

19. In my opinion Section 14 of the Limitation Act itself does not contemplate cases where questions of want of jurisdiction arise from simple ignorance of the law, the facts being fully apparent and clear, but is limited to cases where from bona fide mistakes of fact the suitor has been misled into litigating in a wrong Court. The phrase ' other cause of a like nature ' which occurs in the section is rather vague, but it cannot be held to undo the effect of the con-stitutional obligation which the law imposes upon every citizen to know the law of the land in which he lives.

20. But the learned Pandit went further in supporting the case of the appellants, and he contended that in the present ease jurisdiction did properly lie in the Court of the Judge of Azamgarh. This is an argument which is inconsistent with the fact of this appeal having been finally filed here. But I have listened to it with care, because, as I hold, we are bound to see whether the learned Judge of Azamgarh was not the proper authority to hear the appeal and whether we as the Judges of the High Court have any jurisdiction to hear the appeal. The whole contention so far as this part of the argument is concerned rests entirely upon the interpretation of Section 111 of the Code of Civil Procedure read with the later Section 216 of the same Code, The plaintiffs came into Court assessing by estimate the value of their claim to be Rs. 2,000, and a further relief was also prayed that such balance as might be found due to the plaintiffs might be made over to them. The suit as brought was no doubt a suit for dissolution of partnership, a claim which neither in the Courts of equity nor in the Courts of law can be decided without the taking of accounts. As I understand, in such an action, both in England and in India, the ordinary relief prayed for and the ordinary decree made is that upon such accounts being taken the balance should be made over to the parties to whom such sums might be due. I mention this, because unless this suit falls under the category of a suit for money within the meaning of Section 111 of the Civil Procedure Code, I should have had considerable difficulty in deciding whether or not we, as the High Court, are the proper Court of appeal in this ease. The suit is, in my opinion, a suit for money, within the meaning of this section; because the illustrations which the Legislature has provided to that section show that, no matter what the title may be, no matter whether such title arises ex delicto or ex contractu, so long as the relief sought is to recover money, it is a suit for money, and such a plea of set-off may be raised within the meaning of that section. There are cases cited by Mr. Conlan: Kishorchand Ghampalal v. Madhowji Visram I. L. R., 4 Bom., 407, Bhagbat Panda v. Bamdeb Panda I. L. R., 11 Cal., 557, Kistnasamy Pillay v. The Municipal Commissioner a of the Town of Madras, 4 Mad. H. C. Rep., 120, in which Courts of justice in India have extended the rule, and have held that the provisions of that section are not exhaustive, and the Courts of justice have allowed set-off in those cases. Whether I am prepared to adopt and go the whole length of the rules therein laid down it is not necessary for me to say; But I am clearly of opinion that this present suit was a suit for money, and that it was a suit which would admit of a set-off.

21. In this case the defendants came into Court not denying the partnership, but setting up accounts of their own, and alleged that as the results of those accounts the defendants were entitled to a decree for a sum of Rs. 23,000. It was, indeed, in consequence of such a plea of set-off that the Court below in acting under that section took accounts, and as the result of that account gave the defendants a decree exceeding a sum of Rs. 8,000. It could not be understood to have been a decree which would ordinarly be appealable to the District Judge of Azamgarh, because the jurisdiction of the District Judge in appeals is limited to Rs. 5,000 {vide Section 22, Act VI of 1871). There seems therefore no reason to think that this decree was other than such as Section 216 of the Civil Procedure Code contemplates, and in respect of which the second paragraph of that section is fully applicable. That paragraph says: ' The decree of the Court with respect to any sum awarded to the defendant shall have the same effect, and be subject to the same rules in respect of appeal or otherwise, as if such had been claimed by the defendant in a separate suit against the plaintiff.' Here the decree being beyond the jurisdiction of the Judge, clearly the appeal lay here.

22. There is no explanation supported by affidavit or otherwise why this appeal was not duly preferred in due and proper time directly from the judgment of the Subordinate Judge. But even if it be granted that the period during which the appeal was pending in the Court of the District Judge of Azamgarh be excluded, there is no explanation why between the dates mentioned by my brother Straight sufficient diligence was not employed by the appellants to come to this Court with their appeal. I hold, therefore, that the decree now appealed from was a decree appealable only to this Court, and that the appeal should have been preferred within the period prescribed by Article 156, sch. ii, Limitation Act; and that not having been so preferred, the delay which has taken place is not duly explained, and that the appeal is therefore barred by limitation; and I agree with my brother Straight in dismissing the appeal with costs.

23 [The judgment of the Court disposing of the objections taken by the respondents was as follows]:

Mahmood, J.

24. The question which has arisen to-day relates to certain objections taken by Pandit Sundar Lal's clients, the defendants-respondents in the suit, to the decree of the Lower Appellate Court, under Section 561, Civil Procedure Code. By reason of the judgment of my brother Straight and myself, the appeal in which these objections were raised was dismissed yesterday, not upon the merits, which were never heard, but upon the ground that the appeal should not have been admitted, because it was barred by limitation. Pandit Sunder Lal argues that not withstanding this circumstance, and not withstanding the fact that the dismissal of the appeal was due to the objections and contentions raised on behalf of those defendants-respondents, we, as a matter of law, are bound to proceed with those objections under Section 561 and to deal with them upon their merits both as to fact and law.

25. There is authority in the Indian cases to be found in the cases of Baroda Kant Bhuttacharjee v. Pearee Mohun Mookerjee, 23 W.R., 57, and Coomar Poresh Narain Roy v. Watson and Co., 23 W.R., 229, where it was held that when an appoal is dismissed for default, the hearing of objections under Section 348 of Act VIII of 1859 cannot be allowed to proceed, and similarly it has been held that where an appeal is withdrawn the same is the effect upon the cross-objections. The same is the effect of the case of Bahadoor Singh v. Bhagwan Dass, N.-W. P. H. C. Rep., 1866, p. 23, and of the case of Dhondi Jagannath v. The Collector of Salt Revenue I. L. R., 9 Bom., 28, which case was followed with my concurrence by Oldpield, J., in Maktab Beg v. Hasan Ali I. L. R., 8 All., 551.

26. I take the effect of these various cases to be that the entertainment of objections such as Section 561, Civil Procedure Code, contemplates, is contingent and dependent upon the hearing of the appeal in which such objections are raised, and that when the appeal itself fails, is rejected or dismissed without being disposed of upon the merits, the objections, follow its fate, and cannot be entertained either.

27. Pandit Sundar Lal has argued that this exact point has never yet been ruled, because, as the learned pleader contends, here the appeal was heard, though it was dismissed upon the ground that it was barred by limitation. This contention may at first sight appear to be supported by the ratio decidendi of the ruling of the Madras High Court in Venkatar amanaiya v. Kuppi, 3 Mad. H. C. Rep., 302, which was followed by the Bombay High Court in Dhondi Jagannath v. The Collector of Salt Revenue I. L. R., 9 Bom., 28, but in my opinion those cases are inapplicable, because there the object of withdrawing the appeal aimed at preventing the respondent, after the hearing of the appeal had commenced, from insisting upon his cross-objections. Under such circumstances, withdrawal of an appeal being a matter within the volition of the appellant, the Court was probably right in hearing the cross-objections notwithstanding the withdrawal. Here the plea of limitation is fatal to the hearing of the appeal upon the merits, and the plea has been taken by the respondents themselves, and being a plea in limine barring the hearing of the appeal upon the merits, we have given effect to it as we are bound to do under Section 4, Limitation Act, and have not heard the appeal upon the merits. Like the privilege of set-off in original actions, and I say this only analogically, the Legislature has thought fit to confer upon the parties respondents in appeal the right of being able to raise objections such as Section 561 contemplates. The practical effect of such objections is that they are in themselves appeals to be dealt with as such, but the privilege is qualified by very serious considerations. One consideration is that such objections are not subject to the same period of limitation as appeals. In the next place, they may be argued as against the decree of the Court below itself, although from that decree no appeal has been preferred. These rights were not intended to be used in such a fashion as to be available to the respondent who apparently accepted the terms of the decree of the Court of First Instance, and who never wanted to appeal therefrom, and it was only after the opposite party had appealed that he raised objections. We have already held that the original appeal of the plaintiffs in the suit could not be heard on the merits, as it was barred by limitation, and were we to allow these objections to be dealt with now separately and irrespective of that appeal, we should be practically holding that an appellant who prefers an appeal long after the prescribed period of limitation, may confer upon the respondent the right of having an appeal of his own heard in the shape of objections under Section 561, Civil Procedure Code, although, if the original appeal was barred by limitation, a fortiori such objections ought to be barred also.

28. I am of opinion that the ratio decidendi of the cases which I have cited applies as much to cases where an appeal is rejected or dismissed, as this appeal was dismissed by us yesterday, upon the ground that it could not be entertained because it was barred by limitation.

29. It is therefore not necessary for us to enter into those objections, and they are rejected with costs.

Straight, J.

30. I am of the same opinion.


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