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Bhag Chand Vs. Hanuman Mistri - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Case NumberCivil Revn. No. 508 of 1948
Judge
Reported inAIR1952All396
ActsLimitation Act, 1908 - Sections 4 and 14
AppellantBhag Chand
RespondentHanuman Mistri
Appellant AdvocateS.B.L. Gour, Adv.
Respondent AdvocateK.N. Sinha, Adv.
DispositionRevision allowed
Excerpt:
limitation - wrong court - sections 4 and 14 of limitation act, 1908 - meaning - 'court' - limitation expires on date court is closed - on reopening application filed at wrong court -held, limitation expires. - ordersapru, j.1. this is a defendant's application in revision against an order of the learned judge, small cause court of basti decreeing the plaintiff's suit with costs and future and pendente lite interest at 3 per cent. per annum. the plaintiff's story is that on 22-5-1944 the plaintiff entered into a contract with the defendant for the supply of 50,000 first class bricks at controlled rates, between the 5th june and 19-6 1944. the number of first class bricks supplied by the defendant during this period was 18,500 and that of second class bricks 2,77,749. the plaintiff's case is that the controlled rate fixed for first class bricks was rs. 16 per thousand and that the rate for second class bricks had been settled at rs. 13 per thousand. according to the plaintiff's calculation, the.....
Judgment:
ORDER

Sapru, J.

1. This is a defendant's application in revision against an order of the learned Judge, Small Cause Court of Basti decreeing the plaintiff's suit with costs and future and pendente lite interest at 3 per cent. per annum. The plaintiff's story is that on 22-5-1944 the plaintiff entered into a contract with the defendant for the supply of 50,000 first class bricks at controlled rates, between the 5th June and 19-6 1944. The number of first class bricks supplied by the defendant during this period was 18,500 and that of second class bricks 2,77,749. The plaintiff's case is that the controlled rate fixed for first class bricks was Rs. 16 per thousand and that the rate for second class bricks had been settled at Rs. 13 per thousand. According to the plaintiff's calculation, the total price of the bricks supplied was Bs, 656-12-0. His allegation is that a sum of RS. 1000 had been paid in advance by him to the defendant. If this price of bricks supplied which comes to Rs. 656-12-0 is deducted from this amount, Rs 343-4-0 would be owing to the plaintiff from the defendant.

2. It was further alleged by the plaintiff that on 12 7 1944, on approaching the defendant for a fresh supply of bricks, the defendant had supplied to him 4000 bricks at a rate which exceeded the control rate by Rs. 4, i. e., at Rs. 20 per thousand. 3. The defendant is thus alleged to have realised an extra amount of Bs. 16 on account of the transaction on 12-7 1944. The plaintiff, therefore, claimed Rs. 359-4-0 plus the amount of Rs. 65-8-0 as interest at the rate of Rs. 6 1/2 p. c. per annum. The defence took the line that the quality supplied was the same as given out by the defendant in the receipts. The defendant further stated that the rates given were Rs. 20 per thousand for first class bricks. There was an additional charge of Rs. 2 for cartage. It was further alleged that, on account being taken, it would be discovered that Rs. 11 3-0 were owing to him from the plaintiff. The defence, however, with which I am concerned in the revision before me, is that which relates to limitation. It was pleaded by the defendant that the suit was barred by limitation. According to the defendant the limitation for instituting the suit out of which this appeal has arisen expired on 19 6-1947. Between the 19th June and 5-7-1947 the vacations intervened. On the re-opening of the Court, i. e., 5th July, this suit was instituted by the plaintiff in the Court of the learned Munsif of Basti. It was a Small Cause Court suit and it was discovered on the 8th July that the learned Munsif had no jurisdiction to entertain small cause Court matters. The learned Munsif, thereupon, returned the plaint and direct-ei the plaintiff to institute the suit before the Civil Judge who was also the Small Cause Court Judge. After the plaint had been returned to the plaintiff, there was no delay on his part in instituting the suit before the learned Small Cause Court Judge. The suit was instituted by him on the 8th July. The point which has arisen in this case is whether, in the circumstances which existed in the case, the plaintiff's suit for recovery of the balance of the amount which remained with the defendant in respect of the advance for the bricks the plaintiff had paid to the defendant, was or was not beyond time. The way in which the learned counsel for the defendant applicant has presented his case is somewhat as follows : The Schedule to the Limitation Act (Act IX [9] 1908) prescribes the period of limitation for various causes of action. It is not, to the sections but to the schedule that we have to look for periods of limitation. This case is admittedly governed by Article 181. In the present case, the period of limitation prescribed by the Limitation Act was three years. If we turn to Section 4, Limitation Act, we find that it provides that:

'Where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court re-opens.'

4. Undoubtedly the period between the 19th June and the 5th July could be tacked on to the period of limitation laid down by the schedule, provided the conditions contemplated by the various sections were fulfilled. The position so far as the present suit is concerned was that the period of limitation had expired on 196-1947. Section 4 would have enabled the plaintiff to file the suit on the re-opening day in the right Court, even though the limitation had expired on the 19th June. Had the plaintiff filed the suit in the proper Court on the re-opening day, undoubtedly the period from the 19th June to the 5th July would be added to the period prescribed for limitation by the schedule. Unfortunately what happened in the present suit was that the plaintiff, for reasons for which he was perhaps not entirely to blame, filed the suit in the wrong Court. The Civil Judge who was also doing small cause Court work in Basti had been appointed District and Sessions Judge and there was a general impression that the Munsif waa the proper small cause Court authority during the time that the Civil Judge was acting as District and Sessions Judge. Actually, however, the learned Munsif before whom the suit was filed had never been invested with small cause Court powers and the learned Civil Judge continued to remain invested with small cause Court powers, while he was acting as District Judge and even after his reversion as Civil Judge. Possibly the delay in this case was due to a real misapprehension as regards the powers possessed by the learned Munsif before whom the suit was instituted. Nevertheless, as I read the case of Maqbul Ahmad v. Onkar Pratap Narain Singh, 1935 ALL. L. J. 578 P. C., the position appears to me that the word 'Court' in Section 4 means the proper Court in which the application ought to have been made. From this case the principle is therefore, deducible that where the period of limitation prescribed for an application expires on a day when the Court is closed, and on the day of re-opening the application is made to a wrong Court, Section 4 cannot and does not save limitation. What their Lordships say is that where the period of limitation prescribed expires on a day when the Court is closed the application can be made when the Court re-opens. Their Lordships further make it clear that the language of Section 4 is such as to indicate that it has nothing to do with computing the prescribed period. This case had gone up to their Lordships in appeal from this Court and the judgment of this Court is reported in Maqbul Ahmad v. Pateshri Partap Narain Singh, 1929 ALL. L. J. 976. The judgment of the Bench hearing that case was delivered by Pullan J. who observed that : 'To allow them (the plaintiffs) to take advantage of the provisions of both the Sections (Sections 4 and 14) would be to tack on the long vacation to the period spent in prosecuting the previous application. The provisions of Section 4 can be available only when the application in the proper Court is filed on the reopening day. In this case unfortunately the application was not filed in the proper Court on the re-opening day. This view has been upheld consistently by the Madras High Court and we may in this connection refer to the case of Mira Mohidin v. Nallaperumal 36 Mad. 131 and the case of Ummathu v. Pathumma, 44 Mad. 817. The Bombay High Court, in the case of Basvanappa v. Krishnadas, 45 Bom. 443 has taken a contrary view on the ground that it would be inequitable not to allow the benefit of the vacation which preceded the period which has to be excluded. With great respect we would say that there is no question of equity in cases governed by the Limitation Act.' I note that a view similar to the one which was taken in 1929 ALL. L. J. 976 found favour with Richard G. J. in Makund Bam v. Ramraj, 14 A. L. J. 310. With great reluctance--because there is material on the record to show that the plaintiff was on the horns of a dilemma and that even the offices of the Munsif and the Civil Judge were not completely cognisant of the exact position--I have come to the conclusion that in view of the clear expression of opinion to which I have referred on the point which has arisen before me by their Lordships of the Judicial Committee and two Division Benches of this Court, it is not open to me to hold that the suit instituted by the plaintiff on 8-7-1947 in the Court of the Civil Judge exercising small cause Court powers was within time. Reluctantly, therefore, I have come to the conclusion that I must reverse the judgment of the small cause Court on the point of limitation.

5. It has been urged before me by learned counsel for the plaintiff opposite party that in view of the nature of the defence which has been taken in this case, I ought not to exercise the discretion, which this Court possesses as a Court of revision, in favour of the defendant. He has urged upon me that the plea of limitation, particularly, in the circumstances of this case, will work hardship upon the plaintiff and that it is a plea which should not, in the interest of public policy, be encouraged by this Court. I have given due consideration to this argument and I have come to the conclusion that I should not be exercising my discretion which after all, is judicial discretion, properly if I were to allow this consideration to prevail. While the plea of limitation may not be an ideal plea for a litigant to take, it is a plea allowed by the law of the land and in putting forward the technical defence which the defendant has done, he has not been acting in a manner which contravenes any principles of public policy. The facts of this case are, in my opinion, hardly distinguishable from the cases to which I have invited attention. For this reason I am not prepared to refuse to exercise my revisional jurisdiction in favour of the defendant. At the same time, I think that, in view of all the circumstances surrounding this case, it is desirable that she costs throughout the case should be borne by the parties to the suit. If the plaintiff has been able to realise his costs from the defendant in the lower Court, he will be bound to refund them to the defendant.

6. The result is that the revision is allowed and the suit is dismissed. The parties shall bear their own costs throughout.


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