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Dal Singar Koeri Vs. Chandi Singh and anr. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1940All145
AppellantDal Singar Koeri
RespondentChandi Singh and anr.
Excerpt:
.....defendant failed to discharge it. it is admitted that there was a clear personal covenant in the deed of mortgage upon which the suit had been brought and the plaintiffs were therefore clearly entitled to a personal decree against the defendant on the basis of the loan. the learned munsif arrived at that conclusion for reasons which may best be set out in his own words as follows: it is only when the previous court is unable to entertain the suit for want of jurisdiction or some cause of a like nature and when the cause of action in both courts is the same that section 14 comes into play. cause of a like nature should be one ejusdem generis with want of jurisdiction. in computing the period of limitation prescribed for any suit the time during which the plaintiff has been prosecuting..........applicant and kharpattu koeri instituted a suit on the basis of that mortgage in the court of the learned munsif at azamgarh on the regular side.2. there is no contest that the suit was within time on that date inasmuch as the mortgage deed provided for a period of three years for repayment of the loan. the relief claimed in the suit was the usual one that a decree for the principal and interest due under the mortgage deed may be passed in favour of the plaintiffs and in case of the defendant failing to discharge that amount the property mentioned in the mortgage deed may be sold. it is quite obvious that this relief consisted of two distinct portions (1) that a decree should be passed for the whole amount due under the mortgage on account of principal and interest and (2) that the.....
Judgment:

Mulla, J.

1. This is a plaintiff's application in revision under Section 25, Small Cause Courts Act, against a decree passed by the learned Munsif of Azamgarh in the exercise of Small Cause Court jurisdiction dismissing a suit on the ground that it was barred by limitation. The relevant facts of the case may briefly be stated as follows: The applicant Dalsinger Koeri and Kharpattu Koeri who appears as opposite party No. 2 in the present case held a simple mortgage from the opposite party No. 1, Chandi Singh, for Rs. 55. The mortgage deed was executed on 30th January 1932 but was not registered. The omission to register the deed was presumably due to a mistaken belief that the value of the mortgage being less than Rs. 100 no registration was necessary. On 29th January 1938 the applicant and Kharpattu Koeri instituted a suit on the basis of that mortgage in the Court of the learned Munsif at Azamgarh on the regular side.

2. There is no contest that the suit was within time on that date inasmuch as the mortgage deed provided for a period of three years for repayment of the loan. The relief claimed in the suit was the usual one that a decree for the principal and interest due under the mortgage deed may be passed in favour of the plaintiffs and in case of the defendant failing to discharge that amount the property mentioned in the mortgage deed may be sold. It is quite obvious that this relief consisted of two distinct portions (1) that a decree should be passed for the whole amount due under the mortgage on account of principal and interest and (2) that the property which was the subject of the charge under the deed should be sold to satisfy that amount in case the defendant failed to discharge it. It is admitted that there was a clear personal covenant in the deed of mortgage upon which the suit had been brought and the plaintiffs were therefore clearly entitled to a personal decree against the defendant on the basis of the loan. In the written statement filed by the defendant he raised the plea that the deed in suit not being registered could not operate as a mortgage deed. This plea was obviously sound and the plaintiffs consequently got the plaint amended by scoring out the relief to sell the property covered by the mortgage. It was then found that the valuation of the suit being within the cognizance of the Court of Small Causes the learned Munsif had no jurisdiction to entertain the suit on the regular side. He accordingly directed the plaint to be returned for presentation to the proper Court. This order was passed on 19th March 1938 and the plaint was actually returned to the plaintiffs on 24th March 1938. On the same date the plaint was presented in the same Court on the Small Cause Court side. 'When the suit proceeded to trial the defendant raised the plea, amongst others, that the suit was barred by limitation. The learned Munsif has allowed this plea to prevail and has consequently dismissed the suit though he has rejected all the other pleas taken by the defence. Hence the present application in revision. The substance of the argument on behalf of the applicant is that the learned Munsif has erred in law in holding that the plaintiffs were not entitled to the benefit of Section 14, Limitation Act. The learned Munsif arrived at that conclusion for reasons which may best be set out in his own words as follows:

I do not think that Section 14 has application to the facts of this case. It is only when the previous Court is unable to entertain the suit for want of jurisdiction or some cause of a like nature and when the cause of action in both Courts is the same that Section 14 comes into play. Here neither of the two essentials exist. Cause of a like nature should be one ejusdem generis with want of jurisdiction. A defect in the title deed would not be covered by the expression. Similarly, a cause of action to enforce security is different from one on a personal covenant. Suit is therefore dismissed as time-barred.

3. All that is necessary therefore is to examine the position taken by the learned Munsif and to see if that is right. Now Sec. 14, Limitation Act, runs as follows:

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 a like nature is unable to entertain it.

4. The learned Munsif appears to have arrived at the conclusion that the last part of this Section did not apply to the facts of the present case inasmuch as the previous proceeding in the Court of the learned Munsif on the regular side was based upon a different cause of action from that upon which the later proceeding in the same Court on the regular side was founded and also because the Court on the regular side had jurisdiction to entertain the suit as it was initially framed and the want of jurisdiction having arisen only upon an amendment of the plaint it was not possible to hold within the meaning of Section 14 that the previous proceeding was prosecuted 'in a Court which from defect of jurisdiction or other cause of a like nature is unable to entertain it.' Upon a careful consideration of the terms of Section 14, and the facts of the case, I have arrived at the conclusion that the learned Munsif has gone wholly wrong in appreciating the true significance and scope of the provision contained in Section 14 and has consequently misdirected himself. So far as the first point is concerned, I fail to see how it is possible to urge with any force that the proceeding on the Small Cause Court side was founded upon a cause of action different from that upon which the proceeding on the regular side was based. A suit based upon a mortgage deed is essentially a suit to recover a loan and the cause of action for such a suit is the failure of the defendant to discharge the loan. The learned Munsif appears to have confused 'cause of action' with 'relief.' In a suit based upon a simple mortgage the plaintiff can claim two reliefs; firstly, that a decree should be passed in his favour for the amount due under the deed, and secondly, that the property covered by the charge should be sold. The right to sell the property covered by the charge is only an additional relief to which the plaintiff is entitled under the deed. Both the reliefs however flow from the same cause of action, namely the failure of the defendant to re-pay the loan. The plaintiff in a suit founded upon a simple mortgage proceeds on the same cause of action whether he claims only to recover the loan advanced by him or presses also for the additional relief to enforce the charge in his favour. The distinction between 'cause of action' and 'relief' is clarified by Sub-section (2) of Section 14 which is applicable to applications alone and runs in the following terms:

In computing the period of limitation prescribed for any application the time during which the applicant has been prosecuting with due diligence another civil proceeding whether in a Court of first instance or in a Court of appeal against the same party for the same relief shall be excluded where such proceeding is prosecuted in good faith in a Court which from defect of jurisdiction or other cause of a like nature is unable to entertain it.

5. The question whether two proceedings are based upon the same cause of action or different causes of action cannot be decided upon the terms of the reliefs claimed in either proceeding. It may easily be conceived that the relief claimed on both proceedings might be identical but the cause of action may be wholly different. In the present case I do not find any justification for holding that the proceeding on the Small Cause Court side was based upon some cause of action different from that upon which the proceeding on the regular side was founded. Turning now to the other point I find that the learned Munsif laboured under the misapprehension that the want of jurisdiction or other cause of a like nature referred to in Sec. 14 must be in existence at the very institution of a suit. There is nothing in the terms of Section 14 to justify that conclusion. All that the law requires is that the Court in which the previous proceeding is prosecuted should be unable to entertain it from defect of jurisdiction or other cause of a like nature. Want of jurisdiction or other cause of a like nature may arise at any stage of a suit or proceeding and if upon that basis the Court in which the suit or proceeding is being prosecuted arrives at the conclusion that it cannot entertain it and makes an order accordingly the condition laid down in Sec. 14 which is under consideration is sufficiently fulfilled. In the present case want of jurisdiction arose when the plaintiffs got their plaint amended by scoring out a portion of their relief. The Court was then unable to entertain the suit and had to return the plaint for presentation to the proper Court. That was a sufficient fulfillment of the condition laid down in Sec. 14. The learned Munsif seems to think that it was the non-registration of the mortgage deed in suit which brought about want of jurisdiction and such defect does not fall within the purview of 'other cause of a like nature' as contemplated by Section 14. This is, to my mind, wholly beside the point.

6. It was only the pecuniary value of the claim after the amendment of the plaint which placed it beyond the jurisdiction of the learned Munsif on the regular side in consequence of the provision contained in Sub-section 2 of Section 15, Provincial Small Cause Courts Act. If we suppose for a moment that the value of the claim was high enough so that it could be entertained by the learned Munsif on the regular side no question of want of jurisdiction could possibly arise and the learned Munsif on the regular side could not have refused to entertain the suit. It has been repeatedly held by various Courts that Section 14 ought to be liberally construed and in my judgment the interpretation put upon the Section by the learned Munsif in the present case is against the letter as well as the spirit of the law. The result therefore is that I allow this application in revision and setting aside the decree passed by the learned Munsif decree the plaintiffs suit with costs in all the Courts.


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