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Baladeb Jew Thakur Vs. Dhaneswar Misra - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 252 of 1958
Judge
Reported inAIR1961Ori54
ActsLimitation Act, 1908 - Sections 14
AppellantBaladeb Jew Thakur
RespondentDhaneswar Misra
Appellant AdvocateK.M. Swain and ;Govinda Das, Advs.
Respondent AdvocateS. Misra and ;D. Singh, Advs.
DispositionRevision allowed
Cases ReferredMadhav Rao Narayan Rao v. Ram Krishna Govind Bharu
Excerpt:
.....case to protection under section 14 of the limitation act. in view of the fact that in both the suits, the plaintiff himself drew up the plaints and presented them in court and inasmuch as he had riven the value oe the property in the other suit it was for him to adduce the reasons as to why he failed to give the value of the property in the suit in question or waited such a long time. the facts in the supreme court case are clearly different from the facts of the present case before me. clearly in the supreme court case, the plaintiff was not guided by any legal advice, since the plaint of the suit had been entirely written by him in both the suits and he himself conducted the suits in the trial court. the observation of their lordships of the supreme court does impliedly lend..........negligence for the management of the said thakur's property. on 3-11-1951, the plaintiff thakur filed a suit being original suit no. 519 of 1951 (iii) for recovery of rs. 2982/-, accounts and other incidental reliefs against the said tahasildar defendant in the second munsif's court at cuttack. the defendant filed a written statement denying the plaintiff's claim. a point of jurisdiction was also taken that the munsif's court, cuttack, had no jurisdiction to entertain the suit. it was contended, on behalf of the defendant, that the subject matter of the plaintiff's alleged claim came within section 193(b) of the orissa tenancy act, 1913 which provides that all suits by landlords and others in receipt of the rent of land, against any agents employed by them in the management of land or.....
Judgment:
ORDER

S. Barman, J.

1. The plaintiff is the petitioner in this Civil Revision directed against an order of the Additional District Magistrate (II), Cuttack, in Rent Revision Case No. 3 of 1957-1958 setting aside an order of the Deputy Collector and previous Rent Suit Officer in Case No. 2/193 B of 1954-1955 under Section 193(b) of the Orissa Tenancy Act, 1S39 and directing that the suit be dismissed as barred by limitation.

2. The only question, in this case, is one of limitation which arose in these circumstances: On 31-8-1951 the defendant who was the Tahasildar of the plaintiff Sri Baladeb Jew Thakur installed in its temple at Ichhapur, Kendrapara, in the district of Cuttack, was dismissed for alleged mis-appropriation of monies and negligence for the management of the said Thakur's property. On 3-11-1951, the plaintiff Thakur filed a suit being Original Suit No. 519 of 1951 (III) for recovery of Rs. 2982/-, accounts and other incidental reliefs against the said Tahasildar defendant in the Second Munsif's Court at Cuttack.

The defendant filed a written statement denying the plaintiff's claim. A point of jurisdiction was also taken that the Munsif's Court, Cuttack, had no jurisdiction to entertain the suit. It was contended, on behalf of the defendant, that the subject matter of the plaintiff's alleged claim came within Section 193(b) of the Orissa Tenancy Act, 1913 which provides that all suits by landlords and others in receipt of the rent of land, against any agents employed by them in the management of land or the collection of rents, or against sureties of such agents, for money received or accounts kept by such agents in the course of such employment, or for papers in their possession, shall be cognizable by the Collector and shall be instituted and tried or heard under theprovisions of the said Act and shall not be cognizablein any other Court except as provided in the said Act

The point taken by defence was that, having regard to the nature of the suit, namely, that it was a landlord's suit against the Tahasildar as his agent employed by the landlord in the management of land or the collection of rents as aforesaid, -- the suit came within the scope of Section 193(b) and therefore could be cognizable only in the Revenue Court and not in the Civil Court. On 2-11-1954 the Munsif returned the plaint to be filed in the Revenue Court on the ground that the Civil Court has no jurisdiction,

On 8-11-1954 the plaint was filed in the Revenue Court. Before the Deputy Collector and previous Rent Suit Officer, a point of limitation was taken on behalf of the defendant that the cause of action having arisen on 31-8-1951, being the date of dismissal of the defendant Tahasildar, the suit was barred by limitation on the expiry of 31-8-1954 and hence the suit, as filed in the Revenue Court on 8-11-1954 was barred by limitation. It was contended, on behalf of the plaintiff that the suit was filed in the Munsif's Court on 3-11-1951 as aforesaid which was within time.

It took a period of three years for the Civil Court to decide whether it had jurisdiction to entertain the suit and it was further contended that if the time covered in the Civil Court is excluded, then the suit is within time. The Rent Suit Officer came to the finding that it was a fit case in which the period, for which the case was prosecuted in the Civil Court wrongly, should be excluded in computing the period of limitation and decided that the plaint was filed within time. The defendant appealed to the Additional District Magistrate as Collector under the said Act, who however, set aside the order of the Revenue Court and directed that the suit be dismissed as barred by limitation. Hence this revision.

3. The only point for consideration, in this revision, is whether the plaintiff was entitled to the exclusion of the period, covered in the Civil Court under Section 14 of the Limitation Act, which provides that 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.

In the present case, it appears that during the prosecution of the suit in the Civil Court, the plaintiff had entrusted the suit to a very senior advocate of Cuttack Bar. The suit was filed in the Civil Court within three months of the arising of the cause of action. It further appears that, within a week of the return of the plaint by the Civil Court, it was filed in the Revenue Court, with all diligence oil the part of the plaintiff. It is quite clear that the plaintiff acted in good faith and with due diligence during the course of the pendency of the suit in the Civil Court.

4. Mr. Gobinda Das, learned counsel appearing for the plaintiff, in support of his contentionthat the plaintiff is entitled to the exclusion of the period of the pendency of the suit in the Civil Court, under Section 14 of the Limitation Act, cited a recent decision of the Patna High Court in Subhanand Chaudhury v. Bindeshwari Thakur, AIR 1959 Pat 365 where it was held that if the plaintiff acted on the legal advice of his lawyer it cannot be said that he acted negligently or without due care and attention.

In the Patna case the plaintiff instituted a suit for possession, giving the valuation of the suit properties at the amount for which they had been purchased by the defendant. The plaint was drafted by his lawyer and on his advice he filed the suit in the Munsif's Court. No objection was raised by the Sheristadar of the Munsif's Court regarding undervaluation of the suit. When an objection was raised by the defendant the question was decided by the Munsif who returned the plaint for presentation to the proper Court and it was filed on the same day in the Court of the Subordinate Judge.

On these facts, the Patna High Court held that it could not be said that the plaintiff was not prosecuting his suit before the Munsif with due diligence and in good faith. There is no general doctrine which saves litigants from the results of wrong advice of their lawyer, still a mistaken advicp given by a legal practitioner may, in the circumstances of a particular case, amount to good faith within the meaning of Section 14 oS the Limitation Act. If a senior lawyer, relying on his general impression of law, which he does not think or even suspect to be wrong bona fide gives a wrong legal advice, he cannot necessarily be said to be negligent.

It is enough that the mistake committed bythe lawyer was of such a description that it mightarise even among practitioners of experience andin such a case due to the mistaken legal advice givenbona fide by a lawyer the litigant should not bemade to suffer for such an error. A mistake inadvice of a lawyer, or his mistake in law, does notshow his bad faith. If the mistake of the lawyeris a bona fide mistake, such a case will come withinthe protection of Section 14 of the Limitation Act. Thelearned counsel also relied on a decision of theAllahabad High Court in Ram Lakhman v. Mst. Tulsha, AIR 1954 All 199 where the facts shortly werethat the plaintiff's dispossession took pace on 12-7-1949.

The suit was instituted in the Munsif's Court on 21-12-1949. On 3-4-1950 the plaint was ordered to be returned for presentation to 'proper court' by which term was meant the Revenue Court. The plaint was actually returned on the next day, that is, on 4-4-1950. It was presented in the Revenue Court the same day. On 6-6-1951 the Revenue Court held that the suit was cognizable by the Civil Court. It ordered the plaint to be returned for presentation to the said Court. The plaint was actually returned on 4-7-1951 on which date it was again presented before the learned Munsif who entertained it.

This presentation was certainly made beyond the period of six months from the date of actual dispossession. Article 3 of the schedule to the Limitation Act, prescribes a period of six months calculated from the date of dispossession, for instituting a suit under Section 9 of the Specific Relief Act. Theplaintiffs sought to invoke to their aid the provisions of Section 14 of Limitation Act. The suit was decreed by the learned Munsif. The defendant made an application in revision to the High Court.

The only question of law that arose for decision before the High Court was whether the suit was time-barred. On these facts the Allahabad High Court held that the law is not well settled that if a plaintiff claims to be in possession and makes a grievance of the fact that he was dispossessed by the defendant without his consent and otherwise than in due course of law, he can maintain the suit in the Civil Court under Section 9 of the Specific Relief Act, notwithstanding the fact that the property in dispute may be agricultural land.

There can be no doubt that the Revenue Court was a Court which could not entertain the suit on account of want of jurisdiction. At the same time there can be no doubt that the plaintiffs had acted 'bona fide' in presenting the plaint to the Revenue Court. They have been directed by the Munsif to present the plaint there according to the state of law as then understood, the suit was believed to be entertainable by the Revenue Court only. Therefore, the plaintiffs were entitled to claim exclusion of the period spent in the Revenue Court.

In this view of the matter the revision was dismissed by the Allahabad High Court. In the present case, it appears from the plaint, as filed in the Munsif's Court, that there were certain features in the plaintiff's claim which legitimately led the lawyers to take the view that this perhaps was not a suit strictly within the ambit of Section 193(b) of the Orissa Tenancy Act. There was indeed a claim for damages for alleged negligence of the dismissed Tahasildar defendant as alleged in the plaint which the lawyers presumably thought strictly did not come within the ambit of Section 193(b).

The points involved were rather of somewhat intricate nature and naturally the lawyers were doubtful about the actual position, with the result that they ultimately thought that the suit should be filed in a Civil Court because the plaintiff's alleged claim was of more comprehensive nature than that covered by the limited scope of Section 193(b) of the Orissa Tenancy Act. In my opinion, there was sufficient justification for the doubts which arose in the minds of the lawyers. Undoubtedly there was no question of mala fide on the part of either the plaintiff or his legal advisers.

5. Mr. D. Singh, learned counsel appearing for the defendant contended that the plaintiff filed the suit in the wrong court with a view to harass the defendant unnecessarily. That apart, the learned defence counsel could not impute any other motive to the plaintiff in his filing the plaint in the Civil Court. The learned counsel, in support of his contention that the plaintiff was not entitled to the protection of Section 14 of the Limitation Act, relied on an earlier decision of the Patna High Court, in Sam Narain Singh v. Raghubansa Mani Prasad, AIR 1952 Pat 4 where the facts were these:

A decree-holder's pleader without caring to read the recitals in the decree referred only to the heading of the decree and advised the decree-holder to file his application for execution in a wrong Court, and the Court returned it for presentation toproper Court. The Patna High Court held that, there being negligence on the part of the pleader, he could not be said to have acted in good faith and therefore the decree-holder could not take shelter under the mistaken advice of the pleader.

Hence the decree-holder was not entitled to the benefit of Section 14. This decision of the Palna High Court was discussed and distinguished in the subsequent decision of the same High Court in AIR 1959 Pat 365 cited above. The clearly distinguishing feature as pointed out by the Patna High Court was that in AIR 1952 Pat 4 the conduct of the lawyer was a clear case of negligence on the part of the pleader, which could not entitle the plaintiff in that case to protection under Section 14 of the Limitation Act.

Mr. D. Singh then relied on a Division Bench decision of this High Court in Tirumala Bhaskara Rao Naidu v. Panasa Narayanamma, ILR 1956 Cut 135; ((S) AIR 1956 Orissa 124) where the plaintiff's lawyer committed the mistake of wrongly valuing the suit for the purpose of court-fee and jurisdiction in consequence of which the plaint was returned by the Court in which it was filed. Thereafter the plaint was re-filed in the proper Court but by that time the period of limitation prescribed for the suit had already expired.

The question that arose was whether the plaintiff was entitled to exclusion of the time under Section 14 of the Limitation Act. On these facts Mr. Justice Mohapatra delivering the judgment held that a party is entitled to the exclusion of the period under Section 14 of the Limitation Act only when it is established that the mistake was due in spite of due care and attention, that is to say, the mistake was due not on account of the negligence of the party or his legal adviser who was left in charge of the case. In that particular case the plaintiff entrusted his case to an experienced lawyer but that was not enough to give him relief under the section. The Court has got to examine and scrutinise the conduct of the lawyer. If on such scrutiny if is found that the conduct of the lawyer was palpably negligent and that the view taken by him was unreasonable the plaintiff has got to suffer for the conduct of his counsel. Mere absence of dishonesty and mala fide on the part of the lawyer will not be sufficient for the plaintiff to invoke in his aid the provisions of Section 14 of the Act which ought to be liberally construed.

The lawyer in that particular case could not be censured for such negligence as to disentitle his client to relief under the section. It was accordingly held that the suit was not barred by limitation for the reason that the counsel in charge of the case had taken a reasonable, even if mistaken, view of the law. In the present case before me, there are allegations of damages and negligence as alleged in the plaint. Furthermore, the question, -- whether the relationship between the plaintiff Thakur and the dismissed Tahasildar was one of principal and agent within the meaning of Section 193(b) of the Orissa Tenancy Act, 1913 or whether the relationship was one of mere master and servant, -- was of involved nature and this uncertain legal position quite justifiably gave rise to a reasonable doubt in the mind of the lawyer, as to proper forum where the suit should be filed, namely whether it should he a Civil Court which has all embracing jurisdiction to entertain all suits of civil nature or the Revenue Court which had only exclusive special jurisdiction within certain specified limits as provided in the Orissa Tenancy Act.

Considered from the aspect, it cannot be said that the lawyer in the present case was unreasonable or negligent even though he might have been ultimately found to have been mistaken in the view that he took with regard to jurisdiction. Mr. D. Singh also relied on a decision of the Supreme Court in Madhav Rao Narayan Rao v. Ram Krishna Govind Bharu, AIR 1958 SC 767 where the plaintiff instituted a suit without making a statement as to the value of the subject-matter and prosecuted the same for ten years.

Finding then that the suit would be dismissed because an analogous suit had been dismissed by the same Court, he raised the objection that the value of the suit property was beyond the pecuniary jurisdiction of the Court and obtained the return of the plaint. He filed the plaint in the proper court and claimed that he should get the benefit of the time between the institution of the suit in the wrong court and return of plaint, and the purpose of limitation.

On these facts their Lordships of the Supreme Court held that the real question material for the purpose of Section 14 was not whether the plaintiff was dishonest or that his acts or omissions in this connection were mala fide. On the other hand the question was whether given due care and attention the plaintiff could have discovered the omission without having to wait for about ten years or more. In view of the fact that in both the suits, the plaintiff himself drew up the plaints and presented them in Court and inasmuch as he had Riven the value oE the property in the other suit it was for him to adduce the reasons as to why he failed to give the value of the property in the suit in question or waited such a long time.

In the absence of such reasons it could not be said that he had acted with care and attention. The burden of bringing his case within the section lay on the plaintiff. When he did not satisfy the initial burden which lay upon him the burden did not shift to the defendant to show the contrary. The facts in the Supreme Court case are clearly different from the facts of the present case before me. In the Supreme Court case it was the plaintiff himself who had drawn the plaint and filed the suit and he himself was responsible for the negligence with the consequences which ensued.

In the case before me, the suit was entrusted to a senior member of the Cuttack Bar and in view of the uncertain position in law as aforesaid, the conduct of the lawyer was certainly not mala fide. The Supreme Court decision cited above was also discussed and distinguished on facts in the said Patna High Court decision in AIR 1959 Pat 365 (paragraphs 20 and 21) cited above. Clearly in the Supreme Court case, the plaintiff was not guided by any legal advice, since the plaint of the suit had been entirely written by him in both the suits and he himself conducted the suits in the trial court.

The plaintiff in that case however alleged that the omission on his part to mention the value ofthe properties involved in the suit was due to pleader's mistake: hut this contention was rejected by the trial court by observing that he made this contention with a view to shield himself behind a wrong legal advice. The Supreme Court held that the plaintiff was not entitled to seek protection of Section 14 and observed that the Court below rightly came to the conclusion that the plaintiff himself was responsible for drafting the plaint and for presenting it in Court and that no pleader had any responsibility in the matter.

The observation of their Lordships of the Supreme Court does impliedly lend support to the view that the mistaken legal advice of a lawyer may be a sufficient cause for holding that the plaintiff, acting on the mistaken legal advice of his lawyer was misdirected and, therefore, he must be held to have acted with diligence and in good faith in prosecuting his suit before the first Court. It is the principle underlying a judicial decision which has to be looked into and considered: and not merely the bare result of the decision. Thus keeping in view the principles laid down by the Supreme Court, the result in that decision does not help the defendant.

6. In this view of law and on the facts and circumstances of the case I allow this revision, set aside the order of the learned Additional District Magistrate (II) and hold that the suit is not barred by limitation. Accordingly, this revision is allowed with costs.

Hearing fee Rs. 32/-.


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