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islam Shah Vs. Wali Mohammad Khan - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1462 of 1964
Judge
Reported inAIR1971All473
ActsLimitation Act, 1908 - Sections 14; Code of Civil Procedure (CPC) , 1908 - Order 7, Rule 10(2); Allahabad High Court Rules; Allahabad High Court Orders; Uttar Pradesh General Civil Rules, 1957 - Rule 39
Appellantislam Shah
RespondentWali Mohammad Khan
Appellant AdvocateA.N. Varma, Adv.
Respondent AdvocateSyed Sadique Ali, Adv.
DispositionAppeal allowed
Excerpt:
civil - limitation - section 14 of the limitation act, 1908 and sub - rule (2) of rule 10 order 7 of code of civil procedure, 1908 - exclusion of time till endorsement of return. - - the defendant's tenancy was from month to month beginning from the 1st of each month and that the rent in respect of the shop in dispute was due from 1st october, 1949 till 30th september, 1952 and that the defendant failed to pay the rent for that period in spite of several demands and hence the suit......with the return of the plaint and reads as follows:--(1) the plaint shall at any stage of the suit be returned to be presented to court in which the suit should have been instituted. (2) 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.' 14. it was held by a learned single judge of this court in bisheshwar singh v. ram daur singh, 1887 all wn 302 that the period of time during which the officers of the court are engaged with the preparation of the copy of the plaint and the order thereon, should not be treated as a period of time during which he was not prosecuting his proceedings with due diligence,15. it was held by a division bench of hyderabad.....
Judgment:

D.D. Seth, J.

1. This is a plaintiff's appeal, arising out of a suit, for arrears of rent, amounting to Rs. 252/-, alleged to have been due from the defendant, from 1st October, 1949 till 30th September, 1952. The arrears of rent, claimed by the plaintiff, were in respect of the shop in dispute.

2. The plaintiff's case was that he was the owner of the shop in dispute and that the defendant was his tenant and was paying Rs. 7/- per month as rent. The defendant's tenancy was from month to month beginning from the 1st of each month and that the rent in respect of the shop in dispute was due from 1st October, 1949 till 30th September, 1952 and that the defendant failed to pay the rent for that period in spite of several demands and hence the suit.

3. The plaintiff filed the suit on 3rd October, 1952 in the Court of Judge Small Causes. On 9th April, 1954, the learned Judge held that the suit was not cognizable by him and ordered the plaint to be returned to the plaintiff for presentation to the proper court. Against that order, the plaintiff prefer-red a revision in the High Court, which was dismissed on 11th August, 1960. The plaintiff claimed that he was entitled to the benefit of Sections 14 and 5 of the Indian Limitation Act. The plaintiff's case further was that Bachchu Shah and his predecessors were not Mutwalli of the shops in dispute, but were the owners of the same and that Bachchu Shah made a gift of his entire property to his grandson, Karim Shah, and after the death of Karim Shah, his brother Hamid Shah became the owner of the property. The plaintiff alleged that he was brought up by Hamid Shah, who had orally gifted the property, including the shop in dispute, to the plaintiff, who is the owner of the same.

4. The defence was that the shop in dispute was the property of Baritala and Bachchu Shah, Karim Shah and Hamid Shah were the Mutwallis of the Waqf. According to the defence, the shop in dispute was the Waqf property, in which the plaintiff had no right or title. It was also denied that the defendant was a tenant of the plaintiff or that the shop in dispute was orally gifted to the defendant by Hamid Shah. It was further pleaded that the suit was barred by limitation.

5. For a proper understanding of the facts of the case, it is necessary to mention a few more dates. The plaintiff learnt that the record of the case had been received, in the court below from the High Court on 4th August 1961 and the same day the plaintiff filed an application for the return of the plaint to him. On 7th August 1961, the plaint was returned to the plaintiff and the same day it was presented in the court of the learned Munsif, Azamgarh.

6. The trial court held that the plaintiff was the owner of the shop in dispute and that the defendant was the plaintiff's tenant. According to the trial court, the suit was not barred by limitation and plaintiff was entitled to the benefit of Section 14 of the Limitation Act. On these findings the trial court decreed the plaintiff's suit.

7. In appeal, it was urged before the appellate court by the defendant that the plaintiff's suit was barred by time and that the plaintiff was not entitled to the benefit of Section 14 of the Indian Limitation Act.

8. The appellate court observed that from the record of the trial court it was not clear as to when the plaintiff preferred a revision against the order passed by the Judge, Small Causes, ordering the plaint to be returned to the plaintiff for presentation before the proper court. The appellate court further observed that there was no evidence to show that there was delay in the transmission of the record from the High Court to the Court of the Judge Small Causes, Azamgarh, but the record shows that the plaintiff applied for the return of plaint on 4th August. 1961 and that the plaint was actually returned to the plaintiff on 7th August, 1961, on which date the plaint was presented before the trial court. According to the appellate court, the plaintiff has not explained as to why he did not apply for return of the plaint the moment the record was received from the High Court, The lower appellate court observed that if the plaintiff wanted to take the benefit of Section 14 of the Indian Limitation Act, it was incumbent upon him to prove that he was litigating before the Judge Small Causes with due diligence. The following observations of the appellate court are relevant in this connection:--

'The plaintiff had not explained as to why he did not apply for the return of the plaint after his revision was dismissed by the Hon'ble High Court. Had he applied for the return of the plaint, and, the office had delayed in returning the plaint to him, in that case, it could have been said that default was not that of the plaintiff.'

The plaintiff has not explained as to why he did not apply for return of the plaint immediately after his revision was dismissed. According to the appellate Court, the plaintiff was entitled to the exclusion of the period only between 4th August, 1961 and 7th August, 1961 and that the period between 11th August, 1960 and 3rd August, 1961 could not be excluded, and, hence the appellate court held that the plaintiff's suit was barred by time.

9. The appellate court did not decide the other questions involved in the appeal before it and allowed the appeal of the defendant on the ground that the plaintiff's suit was barred by time.

10. Aggrieved by the judgment and decree of the lower appellate court, the plaintiff has come up in second appeal to this court.

11. I have heard Sri A. N. Verma, learned counsel appearing for the plaintiff-appellant and Sri Sadiq Ali, learned counsel appearing for the defendant-respondent.

12. The learned counsel for the appellant submitted that till the record of the case was received back from the High Court and an endorsement was made on the plaint as required by Order 7, Rule 10 (2), Civil P. C., the plaintiff could not have been entitled to receive back the plaint. According to the learned counsel, the act of endorsement on the plaint was an act of the Court and since the endorsement on the plaint was actually made on the 7th August, 1961 and since the plaintiff presented the plaint in the court of the learned Munsif, the same day, the plaintiff was entitled to the benefit of Section 14 of the Indian Limitation Act. Shri Syed Sadiq Ali, on the other hand, submitted that the plaintiff knew when his revision was dismissed by the High Court and he should have been more diligent in asking for the. return of the plaint, and since he did not do so, the plaintiff was not entitled to the benefit of Section 14.

13. Order 7, Rule 10 of the Code of Civil Procedure deals with the return of the plaint and reads as follows:--

(1) The plaint shall at any stage of the suit be returned to be presented to court in which the suit should have been instituted.

(2) 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.'

14. It was held by a learned Single Judge of this court in Bisheshwar Singh v. Ram Daur Singh, 1887 All WN 302 that the period of time during which the officers of the court are engaged with the preparation of the copy of the plaint and the order thereon, should not be treated as a period of time during which he was not prosecuting his proceedings with due diligence,

15. It was held by a Division Bench of Hyderabad High Court in the Muslim Bank v. Hasan Shiraja, AIR 1951 Hyd 57 as follows:--

'Where a plaint is returned, the endorsement of the dates of presentation and return are imperative under the law. This endorsement is a part of the Court's duty; therefore, until the endorsement is made, the proceedings cannot be said to have come to an end. Where, therefore, there has been a delay on the part of the court in making the endorsement as required by the Code of Civil Procedure, he is entitled to an exclusion of the period till the date the actual endorsement was made.'

16. A Division Bench of the Calcutta High Court took a similar view In Neerendra Bhooshan Lahiri v. Berhampur Oil Mills Ltd. : AIR1933Cal914 . It was observed by the learned Judges of the Calcutta High Court, as follows:--

'Where a plaint is ordered to be returned to be presented in the proper court, the return of the plaint with an endorsement on it is a part of the court a duty, and until at all events, an endorsement Is made and the plaint is ready for return, the proceedings cannot be considered to be at an end. Hence, the time between the date of the order and the date when the plaint is ready for return should be deducted in computing limitation.'

17. The words of Order 7, Rule 10 (2) of the Code of Civil Procedure are imperative. The return of the plaint, with an endorsement on it is a part of the Court's duty and until an endorsement is made and the plaint is ready for return, the proceedings cannot be considered to be at end. This means that the proceedings for return of the plaint came to an end only when an endorsement was actually made on the plaint. Then only can the plaint be said to be ready for being returned for presentation to the proper court.

18. A Division Bench of the Madras High Court in Subbu Naidu v. Varadarajulu Naidu, AIR 1948 Mad 26 held that the plaintiff is entitled to claim exclusion of time under Section 14 of the Limitation Act till an endorsement on the plaint under Order 7, Rule 10 (c) of the Code of Civil Procedure has been made.

19. Section 14 of the Limitation Act deals with exclusion of time of proceedings bona fide taken in court without jurisdiction and Explanation (a) to Section 14 reads as follows:--

'(a) In excluding the time during which a formal civil proceedings were pending, the day on which that proceeding was instituted and the day on which it ended, shall both be counted.'

20. In view of the authorities quoted above and in view of the wordings of Section 14 of the Limitation Act, it must be held that the date on which the plaint was tendered to the plaintiff will be the date on which proceedings ended. I am supported in my view by a decision of the learned Single Judge of this Court in Ram Lakhan Tewari v. Mst. Tulsha : AIR1954All199 .

21. Syed Sadiq Ali placed reliance upon a decision of a Division Bench of this court in Hamida Bibi's case, AIR 1918 All 180, but in Hamida Bibi's case, the Division Bench did not consider Order 7, Rule 10 (2) of the Code of Civil Procedure and hence that decision is not applicable to the facts of the instant case. Moreover, in Hamida Bibi's case, the plaintiff had actually refused to take back the plaint and had lodged a revision in the High Court, on 19th February 1914 and the revision was dismissed on 16th March, 1915 and it was only on 15th June, 1915 that she applied for the return of the plaint which was returned to her on 30th June, 1915,on which date she presented the plaint in the court of the Munsif and it was under these circumstances that the Division Bench of this Court held that even if it were assumed that the plaintiff was entitled to exclude the period from 20th May, 1913 to 16th March, 1915, she could not, in any case, be allowed to exclude the period between 16th March and 30th June under Section 14, inasmuch as she did not prosecute her suit with the diligence in view of the fact that she waited for three months after the dismissal of her application for revision before she asked for the return of the plaint and, hence, the suit was barred by time.

22. In the instant case before me, it was on 4th August 1961 that the plaintiff learnt that the record of the case had been received in the court below from the High Court and the same day he filed an application for the return of the plaint for presentation before the proper court and it was on 7th August, 1961 that the plaint was returned to the plaintiff after an endorsement, as required by Order 7, Rule 10, Civil P. C. and the same day the plaint was presented before the learned Munsif. There is no finding in the case before me that the plaintiff was not prosecuting the case in the court of the Judge, Small Causes, Azamgarh bona fide and under these circumstances, it must be held that the view taken by the appellate court that the plaintiff was not entitled to the benefit of Section 14 of the Limitation Act is not correct.

23. Syed Sadiq Ali drew my attention to Rule 39 of the General Rules (Civil) for Civil Courts. Rule 39 of the General Rules (Civil) deals with return of Vakalatnama with plaint and reads as follows:--

'When a plaint is returned to a pleader or recognised agent of the plaintiff, the authority executed in his favour shall also be returned to him. When returning a plaint for presentation to proper court, a court may order the plaintiff to file a copy of the plaint to be put on record in place of the plaint.'

Sri Sadiq Ali, relying upon the above Rule 39 of the General Rules (Civil) urged that since the plaintiff was required to file a copy of the plaint in order that it may be put on record, the plaint could not be returned to the plaintiff unless the plaintiff supplied a copy of the plaint, and hence, it was the duty of the plaintiff to approach the trial court for the return of the plaint after supplying a copy of the same. I see no force in this contention. The second part of Rule 39 of General Rules (Civil) is not mandatory. I do not agree with Sri Sadiq Ali that the word 'may'occurring in the second part of Rule 39 should be read as 'shall'. The endorsement on the plaint, as required by Order 7, Rule 10, Civil P. C., has to be made by the office of the Court, which is required to return the plaint to the plaintiff and for that endorsement the presence of the plaintiff is not at all incumbent. The task of making the endorsement is an imperative duty cast on the office of the court which is required to return the plaint for presentation before the proper court. The plaintiff does not come into the picture at all while an endorsement is made on the plaint and the plaintiff is entitled to exclude the entire time taken in making the endorsement uptil the date when the plaint is actually returned to the plaintiff after an endorsement, as required by Order 7, Rule 10, Civil P. C. 24. For the reasons mentioned above, I allow this appeal and set aside the judgment and decree of the lower appellate court and hold that the plaintiffs suit was not barred by time. The case will be sent back to the appellate court with the direction that the appeal before the appellate court should be re-numbered to its original number and the other points involved in the appeal should be decided by the appellate court in accordance with the law, after hearing the parties.


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