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Param Kirti Saran Vs. Dewan Singh - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 731 of 1954
Judge
Reported inAIR1961All564
ActsLimitation Act, 1908 - Sections 2(7) and 14
AppellantParam Kirti Saran
RespondentDewan Singh
Advocates:Bhagwan Das Gupta, Adv.
DispositionApplication allowed
Excerpt:
.....lawyer - section 14 protected bona fide mistake of lawyer when plaintiff himself acted in good faith - delay condoned on above grounds-application allowed. - - on the 25th january the learned munsif, before whom the report of the munsarim was put up, made an order calling upon the plaintiff to make good the deficiency in the court-fees, and, further, that the plaint was to be returned for presentation to the proper court after the deficiency in the court fees had been made good. so that the plaintiff made good the deficiency in the court-fees on the 27th january, 1954. on the 28th january the learned munsif made the order for the return of the plaint for presentation to the proper court. --in computing the period of limitation prescribed for any suit, the time during which..........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 like nature is unable to entertain it.* * * * * explanation 1 to section 14 would also be found relevant for our purposes and therefore that explanation may also be quoted. the words of the first explanation are these:'in excluding the time during which a former suit or application was pending, the day on which that suit or application was instituted or made and the day on which the proceedings therein ended, shall both be counted'.8. from the above quoted portion of section 14 it is clear that before a plaintiff can get the benefit of his prosecuting another remedy he must be found to have prosecuted that remedy in.....
Judgment:
ORDER

B. Mukerji, J.

1. This is an application in revision against an order of a Judge, Small Causes, dismissing the plaintiff's suit as being barred by limitation. The circumstances in which the suit was dismissed on the ground of limitation were these:

2. The plaint in the suit was drawn up on the basis of a promissory note, originally, for the recovery of Rs. 1290/- with interest at 2 per cent, per mensem. The promissory note on the basis of which the suit had been filed was one for a sum of Rs. 750/- and had been executed on the 23rd January, 1951 (in the copy of the judgment the date given of the promissory note is inaccurate). Since originally, the intention of the plaintiff was to file a suit for the recovery of Rs. 1290/- i.e., for the entire principal and the entire interest which had accrued on the promissory note, the plaint was drawn up for being filed in the court of the Munsif which was the proper court in accordance with the valuation given in the plaint to entertain the suit.

3. It appears that subsequent to the drawing up of the plaint and before its filing in court the plaintiff changed his mind and he reduced his claim from Rs. 1290/- to Rs. 750/- that is to say, the plaintiff decided to give up the entire interest and to make a claim for the principal only because he thought that he was unlikely to be able to recover the entire sum made up to principal and interest from the defendant. Though the valuation of the suit was altered yet no appropriate or consequential change was made in the 'heading' of the plaint with the result that the plaint which as originally drawn up bore the heading 'In the court of the Munsif, Moradabad'. This error, apparently was born out of the inadvertence of some one other than the plaintiff, for it is nobody's case that the plaintiff himself drew up the plaint or made the subsequent corrections in the plaint in respect of the valuation of the suit.

4. The plaint was filed in the court of the Munsif on the 23rd January, 1954, i.e., on thelast day of limitation for the recovery of Rs. 750/- from the defendant.

5. The endorsement on the back of the plaint indicates that the plaint was presented to the Munsarim of the Munsif by Sri Lakshmi Narain Vakil of the plaintiff on the 23rd January, 1954. On the 25th January, 1954, the Munsarim made a report on the plaint saying that the plaint was deficient in court-fees to the extent of Rs. 98/12/-and that the suit was not cognizable by the court of the Munsif. On the 25th January the learned Munsif, before whom the report of the Munsarim was put up, made an order calling upon the plaintiff to make good the deficiency in the court-fees, and, further, that the plaint was to be returned for presentation to the proper court after the deficiency in the court fees had been made good.

The 26th of January was a holiday; so that the plaintiff made good the deficiency in the court-fees on the 27th January, 1954. On the 28th January the learned Munsif made the order for the return of the plaint for presentation to the proper court. The plaint was taken back by the plaintiff on the 29th January, 1954, and presented to the court of Small Causes, on the same date.

6. The Judge Small Causes came to the conclusion that the suit was barred by time, inasmuch as, the plaintiff was not entitled to deduct the period that had been spent in prosecuting the suit in the Court of the Munsif. The learned Judge, Small Causes, was of the view that the plaintiff lacked due care and attention in the matter of filing his plaint in the court of the Munsif.

7. The relevant portion of Section 14 of the Limitation Act, under which provision the plaintiff in this case, claimed benefit, is in the following words:--

'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 like nature is unable to entertain it.

* * * * *

Explanation 1 to Section 14 would also be found relevant for our purposes and therefore that Explanation may also be quoted. The words of the first Explanation are these:

'In excluding the time during which a former suit or application was pending, the day on which that suit or application was instituted or made and the day on which the proceedings therein ended, shall both be counted'.

8. From the above quoted portion of Section 14 it is clear that before a plaintiff can get the benefit of his prosecuting another remedy he must be found to have prosecuted that remedy in good faith. 'Good faith' has been defined in Section 2 (7) of the Act thus :

'Nothing shall be deemed to be done in good faith which is not done with due care and attention'.

In accordance with the definition, therefore, a party can only claim having acted in good faith if he can show or if it can be held that he had! acted with due care and attention. The question that has therefore to be determined is whether in filing the plaint in the court of the Munsif the plaintiff acted with due care and attention. As I have already indicated earlier, the heading or the plaint had not been corrected although the valuation of the suit was altered. According to the affidavit filed by the plaintiff the heading of the plaint remained uncorrected due to inadvertence and that because of this mistake a bona fide error was committed in filing the plaint in the court of the Munsif.

The court below has found that the error was born out of inadvertence: Further, there is nothing in the decision of the court below to show that the plaintiff acted mala fide or that the plaintiff himself did anything which he should not have done or he did something which contributed or could be said to have contributed to the unfortunate omission in not correcting the heading of the plaint.

9. There are degrees of inadvertence as there are degrees of errors and mistakes. There-fore, it is impossible to lay down any hard and fast rule to the effect that inadvertence and good faith are irreconcilable or that every inadvertence necessarily indicated want of due care and attention. I am unable to hold that the error which was responsible, in the present case, for the plaint being filed in the court of the Munsif was an error which inevitably showed that the plaintiff did not act with due care and attention in the matter of the filing of the plaint.

10. The learned Judge has further held that the plaintiff should have taken back the plaint from the court of the Munsif on the 28th January, the date on which the order for its return had been made, and should have filed it the same day in the court of the Judge Small Causes and, therefore, the plaintiff, according to the Judge, could not be said to have acted with due diligence. In my opinion, there was no material on the record on which it could be said that the plaintiff could have taken back the plaint on the 28th January, 1954, for there is nothing to indicate, on the record, that this order by the learned Munsif directing the return of the plaint was made at such time of the day as afforded sufficient opportunity to the plaintiff to take back the plaint that day; further there is nothing on the record to indicate that the plaintiff had knowledge of this order on the 28th January, 1954.

An examination of the original orders in respect of the return of the plaint, which are endorsed on the back of the plaint, indicates that underneath the date 28th January, 1954, there is endorsed another date, namely, 29-1-1954. What this subsequent date stands for or why this date has been put underneath the first date is difficult to decipher. I have, therefore, not been able to agree with the view of the court belowthat the plaintiff did not act with due diligence in taking back the plaint on the 29th January, 1954.

11. In Kishan Lal v. Tika : AIR1927All719 a Bench of this Court held that Section 14 of the Limitation Act protected a bona fide mistake of a lawyer when the appellant acted in good faith. As I have pointed out earlier, there was no want of good faith on the part of the plaintiff-applicant. He had displayed no want of due care or attention. The mistake which was responsible for the plaintiff's suit having been filed in the wrong court was either the lawyer's or his clerk's and there is nothing anywhere to indicate that the lawyer acted really negligently to an extent to which such negligence could be penalised in the manner in which it has been by the dismissal of the plaintiffs suit on the ground of limitation.

12. The facts and circumstances indicated above could leave no room for doubt that the plaintiff was made the victim of a mistake for which he personally was in no manner responsible. I have therefore seen no adequate reason to uphold the decision of the court below on the question that the plaintiff was not entitled to claim the deduction of the period of time during which the plaint of his suit remained pending in the court of the Munsif and taken back from his court and filed in the court of the Judge Small Causes.

13. I, therefore, allow this application in revision, set aside the order of the court below and send the case back to that court for trial in accordance with law. The costs of this revision will be borne by the applicant.


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