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Balkaran Pandey and anr. Vs. Ram Badan Pandey and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1934All824; 152Ind.Cas.800
AppellantBalkaran Pandey and anr.
RespondentRam Badan Pandey and ors.
Excerpt:
- .....should be brought. the suit was dismissed on 1st august 1930. the applicants therefore made the present application under section 144, civil p.c., on 23rd august 1930 and they asked for damages for four years' dispossession from 1st july 1923 to 30th june 1928. it will be seen that the period for which damages or mesne profits are claimed terminates with the same date but extends for four yeara in the present application, whereas it extended only for two years in the previous suit. the point was taken that the present application was barred by the rule of three years' limitation. from 4th may 1927, the date of the high court decree in appeal, upto the date of the present application, 23rd. august 1930, is a period of more than three years. the applicants claim, the benefit of section.....
Judgment:

Bennet, J.

1. This is a second appeal by the applicants whose application has been. dismissed on the ground of limitation. The facts which are admitted are that the applicants had obtained a decree for joint possession of a third share of certain, property against the defendants in the Court of the Munsif on 13th September 1923 and they obtained possession on that decree. The first appellate Court on appeal dismissed the applicants' suit on 8th May 1924 and the applicants were dispossessed. The applicants' appeal in the High Court was allowed and a decree for possession was granted on 8th August 1928. The successful plaintiffs instituted a suit on 23rd December 1929 against the defendants for recovery of Rs. 70 as mesne profits on the allegation that the defendants had dispossessed the plaintiffs of the said land after the dismissal of their suit by the first appellate Court and that the plaintiffs had remained out of possession until the 18th August 1928. Damages-were claimed for two years from Asarh 1926 to Asarh 1928. That suit was decreed, but dismissed on appeal on the grounds that the suit was barred by Section 144(2), Civil P.C., and that an application should be brought. The suit was dismissed on 1st August 1930. The applicants therefore made the present application under Section 144, Civil P.C., on 23rd August 1930 and they asked for damages for four years' dispossession from 1st July 1923 to 30th June 1928. It will be seen that the period for which damages or mesne profits are claimed terminates with the same date but extends for four yeara in the present application, whereas it extended only for two years in the previous suit. The point was taken that the present application was barred by the rule of three years' limitation. From 4th May 1927, the date of the High Court decree in appeal, upto the date of the present application, 23rd. August 1930, is a period of more than three years. The applicants claim, the benefit of Section 14(2) of the Indian Limitation Act on the ground of their previous suit in the civil Court which occupied the period from 23rd December 1929 to 1st August 1930. Unless this period is allowed the present application will be beyond time. The lower Court has disallowed the application of Section 14 on the ground that the relief is different. No reasons have been given for this opinion. The words used in Section 14(1) are:

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....

2. Now the lower Court has assumed that where there is a difference in the relief there must be a difference in the cause of action. That argument is not correct. A person might ask for different reliefs from the same cause of action. What is different in the present case is that a larger sum of money has been claimed by way of damages or mesne profits because the claim has been made for a larger period of time, that is, four years instead of two years. The cause of action however is in each case the same so far as the cause is the dispossession by the defendants in the suit who are the opposite parties in the present application. The dispossession is the subject of the relief in the present application as regards a longer period of time, but it is the same dispossession as regards a part of that period as was the subject or cause of action of the previous suit. It appears to me that as regards two years of the period of dispossession, that is, the two years immediately preceding the 30th June 1928, the cause of action is identical in the previous suit and in the present application. As regards the period prior to that period of two years it appears to me that the cause of action is different in this sense that, although the cause was the same dispossession, it was for a different period of time, and in that sense it may be said that it was a different cause of action. I consider therefore that it will be correct to apply Section 14 of the Limitation Act in this way : that I hold that the present application is within time by virtue of that section so far as concerns the damages for the period of two years ending with the 30th June 1928 and that the present application is beyond time for the period of two years ending with the 30th June 1926. No finding has been made by the Courts below on issue No. 3: 'To what damages, if any, are the applicants entitled?' Accordingly I remand the application for disposal by the trial Court on this remaining issue. Costs hitherto incurred will abide the result. Permission is granted to the parties for a Letters. Patent appeal.


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