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Firm Lalchand Nathmal and ors. Vs. Firm Balaram Rameshwar and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMadhya Pradesh High Court
Decided On
Case NumberFirst Appeal No. 99 of 1951
Judge
Reported inAIR1957MP95
ActsLimitation Act, 1908 - Sections 14 and 14(1); Evidence Act, 1872 - Sections 3; Code of Civil Procedure (CPC) , 1908 - Order 7, Rule 6
AppellantFirm Lalchand Nathmal and ors.
RespondentFirm Balaram Rameshwar and ors.
Appellant AdvocateV.K. Sanghi, Adv.
Respondent AdvocateR.K. Pandey, Adv.
Cases ReferredNagubai v. B. Shama Rao
Excerpt:
.....which admits at ordinary errors but despite such drawbacks may not be sufficient to negative good faith. shama rao, (s) air 1956 sc 593 (e). the defendant cannot, therefore, be permitted to complain of any prejudice for want of proper details in the..........payment was given till 2-12-1949, and although on that date the plaintiffs were granted further time till 9-1-1950, the amount was later on paid on the same date. afterwards, the plaint was returned on 12-12-1949 and was presented in the court of the civil judge, class i, raigarh, on 24-12-1949. later the suit was taken up by the district judge, raigarh, and 'disposed of by him.5. the question at issue is whether the time between 25-11-1047 and 12-12-1949 should be excluded under section 14 of the indian limitation act, 1908. on this question, the lower court has held in respect of the period between 10-9-1949 and 12-12-1949 that the plaintiffs are entitled to its exclusion. this finding is contested by the defendant in his cross-objection. the lower court, however, held that the time.....
Judgment:

1. This is plaintiffs' appeal from the decree in Civil Suit No. 7-B of 1050 of the Court of the District Judge, Raigarh, dismissing their suit OR the point of limitation,

2. The plaint was initially filed in the Court of the Additional Civil Judge, Class I, Bilaspur, on 25th November, 1947. The suit was instituted against Firm Balaram Rameshwar of Kharsia, said to be owned by (1) Balaram and (2) Rameshwar who were joined as defendants. It was alleged that the defendants were residing and carrying on business at mouza Tundri in tonsil Janjgir, district Bilaspur, This was the solitary ground on which the Court was alleged to have jurisdiction to entertain the suit. The claim was based on the dealings between the plaintiffs' firm Lalehand Nathmal and the defendants' firm between 23-2-1944 and 10-12-1944,

At the time the dealings began, the defendant-firm was carrying on business at Tundri within the jurisdiction of the Court. Till 17-10-1944, it was styled as 'Balaram Hameshwar', and subsequently, as 'Rameshwar', in the plaintiffs' account-books. According to the defendants, in the month of Katik, Sambat 2000 (this should be 2001), corresponding to October 1944, there was a partition in the family when Balaram began dealings at mouza Tundri in the name of 'Balaram Rameshwardas' and 'Bhagwandas Rameshwardas', and Rameshwar carried on business at Kharsia in the name of 'Nanhooram Rameshwar'. Their case was that the dealings were entered into by Rameshwar alone who did not reside within the jurisdiction of the Court. It was accordingly alleged that the Court had no jurisdiction to entertain the suit and there was no liability against Balaram for the dealings.

3. The suit was tried on all points including that of jurisdiction. Judgment was delivered on 10-9-1949, holding that Balaram had no share in the dealing which were entered into by Rameshwar alone. The suit was thus dismissed as against Balaram. So far as Rameshwar was concerned, it was held that his residence within the jurisdiction of the Court was not proved and accordingly the suit was not maintainable in the Court of Bilaspur. In this view, the plaint was directed to be returned for presentation to the proper Court.

4. It appears from the order-sheets of the suit that on 10-9-1949, when the judgment was delivered, the Court passed an order that the plaint would be returned only after a certified copy thereof was filed. The case was accordingly directed to be put up on 2-5-9-1949. As the copy was not obtained till then, further time was granted till 10-10-1949. The time was again extended upto 14-11-1949 as the Judge was on leave and the copy of the plaint was not ready till then for delivery. The copy was filed on this date. The Court thereupon directed the original plaint to be returned to the plaintiffs' counsel. However, immediately after it passed an order withholding the plaint as the question of court-fees on the claim against Balaram had to be considered. This point was decided on 15-11-1949 when the plaintiffs were directed to pay an additional court-tee of Rs. 460/- before the plaint could be returned. Time for payment was given till 2-12-1949, and although on that date the plaintiffs were granted further time till 9-1-1950, the amount was later on paid on the same date. Afterwards, the plaint was returned on 12-12-1949 and was presented in the Court of the Civil Judge, Class I, Raigarh, on 24-12-1949. Later the suit was taken up by the District Judge, Raigarh, and 'disposed of by him.

5. The question at issue is whether the time between 25-11-1047 and 12-12-1949 should be excluded under Section 14 of the Indian Limitation Act, 1908. On this question, the lower Court has held in respect of the period between 10-9-1949 and 12-12-1949 that the plaintiffs are entitled to its exclusion. This finding is contested by the defendant in his cross-objection. The lower Court, however, held that the time taken up in the Court between 25-11-1947 and 10-9-1949 could not be excluded as the plaintiffs had not acted in good faith and with due diligence in prosecuting the suit. This finding was arrived at on the view that the plaintiffs knew that Rameshwar was not residing within the jurisdiction of the Court and had made that allegation in the plaint to wrongfully give to the Court jurisdiction to entertain the suit.

6. At the time the suit was instituted in the Court at Bilaspur, Kharsia was within the area of the quondam State of Raigarh. However, the plaintiffs were carrying on business at that place, and as appears from the evidence of the plaintiff, Nathmal (P.W. 1), suits were also filed against them at Raigarh which they were defending through their counsel of Bilaspur. Their motive in instituting the suit at Bilaspur, therefore, could not be to avoid the Courts at Raigarh. What other purpose they could have in selecting a wrong Court has not been stated by the defendant. There is also nothing on record to show that the partition effected by his family was known to the plaintiffs. The mere fact that the plaintiffs changed the name of the firm in their account-books onwards of 17-10-1944 would not necessarily indicate that they had notice of the partition. At least, Balaram, who was a partner in the firm when the dealings began, continued residing at Tundri within the jurisdiction of the Court. Also, although the Court held that Rameshwar did not reside within its jurisdiction, it docs not follow therefrom that the plaintiffs knew of the change of his residence from Tundri where formerly the firm was carrying on business, There is, therefore, no reason to suspect any ulterior motive on the part of the plaintiffs to have instituted the suit in the Court of Bilaspur. The case has to be judged on this basis.

7. The question of limitation depends upon the application of Sub-section (Ij of Section 14 of the Indian Limitation Act. This provision contemplates the following conditions:--

(i) That the plaintiff was prosecuting the suit with due diligence;

(ii) That he prosecuted it in good faith; and

(iii) That the Court was unable to entertain thesuit from defect in jurisdiction or other cause of atlike nature.

The burden of proving all these conditions was doubtless on the plaintiffs; See Gnanacharya v. Sara-vanaperumal, ILR 1941 Mad 347: (AIR 1941 Mad 319) (FB) (A).

8. The case where only some of the defendants reside within the jurisdiction of the Court is governed by Clause (b) of Section 20 of the Code of Civil Procedure, It gives power to the Court to grant leave for the institution of the suit before it, even if other defendants do not reside, or carry on business, or personally work for gain within its territorial jurisdiction. It cannot, therefore, be said that the Court at Bilaspur was wholly devoid of jurisdiction to entertain the suit. It is true that the plaintiffs did not ask for the Court's leave under this provision, but that only strengthens the inference that they were under a genuine belief that both the defendants were residing at Tundri. Plaintiff Nathmal, as P.W. 1 has testified to the fact that according to his information both the defendants were residing at Tundri at the time of the institution of the suit.

This statement cannot be dismissed on the mere ground that he could not recall the names of the persons who had given him the information. His evidence on the point has not been rebutted by the defendant. There is, therefore, no reason to discard it. The plaintiffs had clearly two courses open when the objection to the Court's jurisdiction was raised. They could have taken back the plaint and filed it in the Court at Raigarh. Alternatively, they could have prayed for the leave of the Court. When both these courses were not availed of by the plaintiffs, it must be held that they genuinely believed that both the defendants were residing within the jurisdiction of the Court.

9. There is no doubt that the plaintiffs were prosecuting the suit in the Court at Bilaspur with due diligence as they had taken all the necessary steps and had committed no default. The lower . Court, however, declined to apply Section 14 of the Indian Limitation Act on the ground that they had not proved good faith, that is, due care and attention, in prosecuting the suit. This is not a case of any negligence on the part of the plaintiffs which, as held in Ghisulal Ganeshilal v. Gumbhirmull, AIR 1938 Cal 377 (B), would bar the application of Section 14 of the Indian Limitation Act. Nor is it a case of any ulterior motive or lack of genuine belief which would disentitle them to relief: See Sheonarayan v. Ramprasad, AIR 1923 Nag 241 (C). The only question is whether in the circumstances of 616 case, the plaintiffs should be deemed to have acted with due care and attention.

10. This question was considered at some length in Naik Lalloolal v. Naik Vishnu, S. A. No. 550 of 1948 D/-18-2-1954 (Nag)(D), which was decided by one of us (Bhutt, J.). It was observed in that case that the question whether or not due care and attention was exercised has to be determined with reference to the facts of each case. The standard of proof that is required to adjudge this issue cannot be higher than what is laid down in Section 3 of the Indian Evidence Act, 1872, which defines the term 'Proved' as below:

''A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon thy supposition that it exists.'

How this definition has to be applied to the facts of each ease has been laid down in that case in these terms:--

'Under this definition a broad view has to be taken and despite certain errors of a human nature, if a prudent man is inclined to take a different view on the basis of other materials, that should be deemed to be proved as a fact. The standard of judgment in such cases is common human conduct which admits at ordinary errors but despite such drawbacks may not be sufficient to negative good faith. One proceeds' in human affairs on the basis that if the care and attention that a problem ordinarily requires is given there would not be any further complications. He is not expected to imagine all possible difficulties and accidents and provide against them before hand. If such were the ease, a person would be found guilty of negligence in each case only if an untoward result has followed. This is not the standard that the law requires.'

11. The facts of the present case are that when the suit was filed at Bilaspur, the plaintiffs genuinely believed that both the defendants were residing within the jurisdiction of the Court. This belief persisted with thorn until the matter was finally determined on 10-9-1949. As presumably they had no information of the partition in the defendant's family, they had no occasion to imagine that one of them had left the place of residence. There was, therefore, no occasion for the plaintiffs to make any enquiry on this point. In these circumstances, it cannot be held that they did not exercise due care and attention solely because they did not undertake what they could not imagine to be a necessary enquiry. The time taken in the Court at Bilaspur up to 10-9-1949 is, therefore, in our opinion, covered by Clause (1) of Section 14 of the Indian Limitation Act.

12. The plaint could not be taken back by the plaintiffs at least till 14-11-1949 due to the direction of the Court prohibiting its return until its certified copy was filed. Subsequently also, the plaint could not be taken back by the plaintiffs till the amount of court-fees directed by the Court was paid. They could not obviously have expected such a direction on the date they filed the copy of the plaint. Their request for time for payment of the court-fees was, therefore, reasonable and as the Court had granted them time till 2-12-1949, the propriety of excluding time upto that date cannot be open to question.

Afterwards, the plaintiffs paid the court-fees On the due date, namely, 2-12-1949. On that date, however, the Judge was busy in a sessions case and it was obviously for this reason that the plaint could not then be returned. That the plaintiffs were careful in taking back the plaint as soon as possible appears from the fact that although the Court had fixed the case for return of the plaint on 9-1-1950, they had taken it back on 12-12-1949. The lower Court was, therefore, right in holding that the time between 10-9-1949 and 12-12-1919 was liable to he excluded. However, in view of our finding above, the plaintiffs are also entitled to the exclusion of time from 25-11-1947 till 10-9-1949. Accordingly, even if the time between 12-12-1949 and 24-12-1949 is not excluded, the suit would still be within limitation.

13. It was, however, contended that the plaintiffs had not supplied proper details in the plaint to entitle them to the exclusion of time. So far as the facts upto 12-12-1949 were concerned, they were known to both the parties. Whatever further the plaintiffs could say was not material if the time till 12-12-1949 was liable to be excluded. Proper issues were also framed covering the entire period upto 12-12-1949. This is not, therefore, a ease where the parties had no knowledge of the points at issue. The ease is accordingly covered by the dictum in Nagubai v. B. Shama Rao, (S) AIR 1956 SC 593 (E). The defendant cannot, therefore, be permitted to complain of any prejudice for want of proper details in the pleading.

14. The result is that the cross-objection fails and is dismissed, and the appeal succeeds and is allowed, The decree of the Court below is accordingly set aside and the suit is remitted to it for decision in accordance with law. Costs shall abide the result. There shall be a certificate for refund of the court-fees on the appeal.


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