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Kashiram Vs. Santokhbai - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 171 of 1951
Judge
Reported inAIR1958MP91
ActsLimitation Act, 1908 - Sections 14 - Schedule - Article 89
AppellantKashiram
RespondentSantokhbai
Appellant AdvocateK.A. Chitale, Adv.
Respondent AdvocateG.M. Chaphekar, Adv.
DispositionAppeal allowed
Cases ReferredRamhari v. Rohini Kanta
Excerpt:
.....and the court in which the prior proceeding was prosecuted must have been unable to entertain it for the reasons specified, namely, defect of jurisdiction or other cause of a like nature. now the words 'which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it' which occur in section 14(1) of the limitation act are very significant. in our opinion when a suit is dismissed not because the court had no jurisdiction to entertain it, or for any other cause of a like nature, but because it was misconceived or because the proceeding or the suit was not one recognised by law as legal in its initiation, then clearly section 14 of the act is not attracted to such a suit. if then section 14 of the limitation act has no applicability to this case and the..........to grant relief to the plaintiff but inability to give him a trial at all. in our opinion when a suit is dismissed not because the court had no jurisdiction to entertain it, or for any other cause of a like nature, but because it was misconceived or because the proceeding or the suit was not one recognised by law as legal in its initiation, then clearly section 14 of the act is not attracted to such a suit. this view is amply supported by the cases cited by the learned counsel for the appellant and numerous other cases. now, here, the plaintiff's prior suit was dismissed not because of any defect of jurisdiction or any other ground similar to it but it wag entertained and dismissed because it was wholly misconceived and the relief of rendition of accounts could not be granted against.....
Judgment:

Dixit, J.

1. This is an appeal under S. 23 of the Madhya Bharat High Court Act from a decision of Menta, J., of the Madhya Bharat High Court in Civil First Appeal No. 95 of 1948. By that decision the learned Judge modified the decree of the District Judge, Sailana, and gave to the plaintiff-respondent a decree for Rs. 1,316-4-0 and for the recovery of certain shares or in lieu thereof a sum of Rs. 745 as the value of the shares from the appellant.

2. The facts and circumstances giving rise to this appeal are that Santokhbai instituted a suit against Bherulal on 31st December 1946, for the recovery of a sum of money on account of various items amounting to Rs. 2,705-14-6 on he allegation that Bherulal's father Kashiram was her Mukhtar-Am and used to look after her business affairs and receive Galla on her behalf; that Kashiram died on 13th February 1943, without explaining to her the accounts of her business; and that Bherulal was thereafter asked to render the accounts but he did not do so. On 5th December 1944, Santokhbai had filed a suit for rendition of accounts against Bherulal.

That suit was dismissed by the trial Court on 5th December 1946, on the ground that a suit for rendition of accounts did not lie against the son of a deceased Mukhtar. The present suit was filed after the dismissal of the suit for rendition of accounts. The suit was resisted by the defendant mainly on the ground that it was barred by time and that in view of a settlement arrived at between the parties and contained in Ex. D-l, the plaintiff was not entitled to recover any amount from the defendant. The trial Court held that the suit was governed by Article 120 of the Limitation Act and was within time; and that Section 14 of the Limitation Act had no application. The plaintiff's claim was decreed by the trial Court to the extent of Rs. 2,409-8-6. Bherulal then appealed to the Madhya Bharat High Court.

3. Bherulal's main contention in the appeal was that the plaintiffs suit was governed by Article 89 of the Limitation Act, and was barred by time. Mehta, J., accepted this contention and held that the suit not having been filed within three years from the date of the termination of the agency, that is from the date of the death of Kashiram, it was barred by time. He further held that the plaintiff was entitled under Section 14, Limitation Act, to the deduction of the time taken in the prosecution of the prior suit for rendition of accounts as the plaintiff had prosecuted that suit with due diligence. The learned Judge further held that in accordance with the settlement embodied in Ex. D-l, the plaintiff was not entitled to sue for the recovery of certain amounts. Accordingly, the learned Judge modified the decree of the lower Court in the manner indicated above.

4. In this appeal the main contention of Mr. Chitale, learned counsel for the appellant, is that Section 14 of the Limitation Act could not be invoked in this case as the plaintiff's prior suit was dismissed; not on account of defect of jurisdiction or other cause of a like nature, but that it was entertained and then dismissed because the relief of the rendition of accounts was not available against the son of a deceased agent. Learned counsel relied on V.C. Thani Chettiar v. Dakshinamurthy Mudaliar, (S) AIR 1955 Mad 288 (A); Nakul Chandra Ghose v. Shyamapada Ghose, AIR 1945 Cal 381 (B); and Ramanand Prasad v. Gaya Prasad Ram, AIR 1949 Pat 362 (C).

5. In our opinion, the contention advanced on behalf of the appellant must be given effect to. We have no doubt that Section 14 of the Limitation Act has no application to the facts of this case and the plaintiff is not entitled to the benefit of that section. Before that section can apply, the prior proceeding must have been founded upon the same cause of action as that on which the later suit is founded and the Court in which the prior proceeding was prosecuted must have been unable to entertain it for the reasons specified, namely, defect of jurisdiction or other cause of a like nature. Now the words 'which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it' which occur in Section 14(1) of the Limitation Act are very significant.

As pointed out by Mukherjee, J. (as he then was), in AIR 1945 Cal 381 (B), the word 'entertain' means to admit for consideration. It does not mean giving relief, and that when a suit or proceeding is not thrown out in limine but the Court receives it for consideration and disposal according to law, it must be regarded as entertaining the suit or proceeding, no matter whatever the ultimate decision may be; and that a suit is to be regarded as not entertained by the Court only if it is thrown out at its inception and the Court does not decide it on its merits.'

The learned Judge further observed that Section 14 of the Limitation Act speaks of the inability of the Court to entertain a suit or proceeding on certain specific grounds, which are of a formal nature and that inability to entertain a suit means not inability to grant relief to the plaintiff but inability to give him a trial at all. In our opinion when a suit is dismissed not because the Court had no jurisdiction to entertain it, or for any other cause of a like nature, but because it was misconceived or because the proceeding or the suit was not one recognised by law as legal in its initiation, then clearly Section 14 of the Act is not attracted to such a suit.

This view is amply supported by the cases cited by the learned counsel for the appellant and numerous other cases. Now, here, the plaintiff's prior suit was dismissed not because of any defect of jurisdiction or any other ground similar to it but it wag entertained and dismissed because it was wholly misconceived and the relief of rendition of accounts could not be granted against the son of a deceased agent. The suit was dismissed because the proceedings according to the trial Court were not recognised by law as legal in their initiation. If then Section 14 of the Limitation Act has no applicability to this case and the plaintiff's suit is governed by Article 89, then it is clearly barred by time and must be dismissed.

6. Mr. Chaphekar, learned counsel for the respondent, admitted before us that Section 14 of the Limitation Act could not be applied in this case. He, however, contended that the plaintiff's suit was governed by Article 120 and not by Article 89 of the Limitation Act and that it having been filed within six years from the death of Kashiram was within time. Referring to an observation of Bose, J., in Deorao Zolba v. Lax-mansingh Bania, AIR 1943 Nag 227 (D), it was argued that Article 89 was applicable only to suits for accounts and that the present suit was not one for accounts but for the recovery of specific items of money and property. We are unable to accede to this argument. Article 89 describes the suits to which it is applicable thus: 'By a principal against his agent for movable property received by the latter and not accounted for.'

From the language of the Article it is manifest that its applicability is not confined to suits for accounts. It is applicable for the recovery of any movable property which has been received by the agent and which has not been accounted for. A suit for accounts is no doubt within the ambit of Article 89 as the words 'movable property' in the Article include money. But from this it does not follow that Article 89 is not applicable to suits other than the suits for accounts. In AIR 1943 Nag 227 (D), Article 89 was applied to a suit for accounts. In that case, Bose, J., distinguished a decision of the Calcutta High Court reported in Ramhari v. Rohini Kanta, AIR 1922 Cal 499 (E), by observing that in the Calcutta case 'Article 89 was not applied because it was held that the suit in that case was not a suit for accounting nor was it a case of agency. '

The learned Judge went on to say: 'It is clear that in a position of that kind the claim would be for a specified sum of money and no question of accounting would arise.' In the Nagpur case the question whether the applicability of Article 89 was confined to suits for accounts only did not arise and the observations of Bose, J., must be regarded as confined to the facts of the case with which he was dealing and to the facts of the case which he was distinguishing.

What the learned Judge wished to emphasise in that case was that the relation of principal and agent must obtain before Article 89 can be applied. We do not find anything in the Nag-pur decision which could be read as laying down that Article 89 applies only to a suit by a principal against his agent. Learned counsel for the respondent was unable to refer us to any decision laying down the proposition advanced by him.

7. In the result, this appeal is allowed, the decision of Mehta, J., is set aside and the plaintiff-respondent's suit is dismissed with costs throughout.


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