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Bhikari Das Vs. Mulchand - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1885)ILR7All624
AppellantBhikari Das
RespondentMulchand
Excerpt:
act xii of 1881 (n.w.p. rent act), section 140 - case struck off with liberty to plaintiff to bring a fresh suit--omission to sue for part of claim in case struck off--fresh suit for omitted claim not barred--civil procedure code, section 43--act xii of 1881, section 93(h)--village expenses--expenses of cultivating sir-land held in partnership by plaintiff and defendant. - .....43 of act xiv of 1882. it appears that the plaintiff formerly sued the defendant for his share of the profits of 1286 fasli. at the time of the institution of that suit the profits now claimed were due. this suit was struck off on account of the non-appearance of the parties, under section 140 of act xii of 1881, and leave was specially reserved for the plaintiff to bring a fresh suit. i do not see anything in the law to prevent the plaintiff from bringing the present suit. at any rate, before the case was struck off he could have so amended his plaint as to have included the present claim. if he could do so, a fortiori i do not see any reason why he should not do the same in afresh suit. as it is, the claim for 1286 fasli is barred by limitation, and the plaintiff can now proceed with.....
Judgment:

Straight, J.

1. I think the Courts below have rightly held that the suit is not barred by the provisions of Section 43 of Act XIV of 1882. It appears that the plaintiff formerly sued the defendant for his share of the profits of 1286 fasli. At the time of the institution of that suit the profits now claimed were due. This suit was struck off on account of the non-appearance of the parties, under Section 140 of Act XII of 1881, and leave was specially reserved for the plaintiff to bring a fresh suit. I do not see anything in the law to prevent the plaintiff from bringing the present suit. At any rate, before the case was struck off he could have so amended his plaint as to have included the present claim. If he could do so, a fortiori I do not see any reason why he should not do the same in afresh suit. As it is, the claim for 1286 fasli is barred by limitation, and the plaintiff can now proceed with his claim in respect of 1287 and 1288 fasli.

2. I also concur with the Judge in that portion of his judgment in which he disposes of the plea about sir expenses. As to the third plea, the judgment of the Judge fully disposes of all the pleas. The appeal is dismissed with costs.

Brodhurst, J.

3. I concur.


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