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Firm Kaura Mal Bishan Dass Vs. Firm Mathra Dass Atma Ram, Ahmedabad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 322 of 1954
Judge
Reported inAIR1959P& H646
ActsHigh Court Rules and Orders; Punjab High Court Rules - Rule 4; Suits Valuation Act, 1887 - Sections 8 and 9; Code of Civil Procedure (CPC) , 1908 - Sections 6, 9, 21 and 96; Evidence Act, 1872 - Sections 115; Limitation Act, 1908 - Sections 5
AppellantFirm Kaura Mal Bishan Dass
RespondentFirm Mathra Dass Atma Ram, Ahmedabad and ors.
Appellant Advocate Rup Chand, Adv.
Respondent Advocate D.R. Manchanda,; K.S. Thapar and; S.C. Mital, Advs.
Cases ReferredIn Mt. Kulsoomun Nissa v. Noor Moharnmad
Excerpt:
.....the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply communication of a copy of the written order itself, a party who knows about the making of an order cannot ignore the same and allow grass to grow under its feet and do nothing except waiting for a formal communication of the order or to choose a tenuous plea that even though he knew about the order, he was waiting for its formal communication to seek redress against the same in appeal. if a party does not know about the making of the order either actually or constructively it may claim that the period of limitation would start running from the date it acquires knowledge of the making of an..........on this finding the suit was dismissed.3. the plaintiff went up in appeal to the court of the senior subordinate judge, presenting the memorandum of appeal on 9-8-1952. a preliminary objection was raised by the defendant-respondent that the senior subordinate judge had no pecuniary jurisdiction to hear the appeal. shri manohar singh, who happened to be the senior subordinate judge at the relevant time, gave effect to the preliminary objection and found that the appeal should have been filed in the court of the district judge. on the basis of this order on 17-2-1953 the memorandum of appeal was returned to the plaintiff-appellant for presentation to the court having jurisdiction in the matter. on the same day the appellant's counsel took back the memorandum of appeal from the court.....
Judgment:

I.D. Dua, J.

1. This appeal and the connected revision (Civil Revision No, 360 of 1954) are being disposed of by one judgment as they arise Out of the same litigation. Firm Kaura Mal-Bishan Das used Ho carry on business at Multan; since the partition of the country, however, it has been carrying on its business in Delhi where it shifted on account of the setting up of Pakistan. Firm Mathra Das-Atma Ham respondent is carrying on business of Cloth Merchants and Commission Agents at Ahmeda-bad. Firm Kaura Mal-Bishan Das alleged that it had entered into several transactions of cloth through firm Mathra Das-Atma Ram at Ahmedabad, the dealings having started from January 1946 and continued for a number of years.

It was further pleaded that firm Mathra Das-Alma Ram submitted some accounts on 19-3-1948 but the same were not admitted to be correct; the accounts having not been rendered of the entire dealings. Firm Kaura Mal-Bishan Das brought the present suit for rendition of accounts and for a decree for such amount as may be found due to it after the accounts have been gone into. Firm Mathra Das-Atma Ram defendant-respondent pleaded that it was carrying on business as pucca arhtia at Ahmedadad; that its dealings with the plaintiff started on 20-2-1947; that it did not act as Commission Agents for the plaintiff, all the transactions being as principal to principal; and that the relationship between the parties being that of seller and buyer and full accounts having been already rendered and accepted as true by the plaintiff, and further the amount found due on the basis of those accounts having actually been received by the plaintiff, the present suit deserved to be dismissed. The form of the suit was also objected to. The learned Subordinate Judge framed only one issue, on the pleadings of the parties, viz. -

1. Whether the defendant is liable to render accounts to the plaintiff as Commission Agents

2. The trial Court found that the relationship between the parties was not that of principal and agent but of a seller and buyer and that the suit for rendition of accounts was thus not competent. It was also found that the accounts had already been fully gone into and rendered. On this finding the suit was dismissed.

3. The plaintiff went up in appeal to the Court of the Senior Subordinate Judge, presenting the memorandum of appeal on 9-8-1952. A preliminary objection was raised by the defendant-respondent that the Senior Subordinate Judge had no pecuniary jurisdiction to hear the appeal. Shri Manohar Singh, who happened to be the Senior Subordinate Judge at the relevant time, gave effect to the preliminary objection and found that the appeal should have been filed in the Court of the District Judge. On the basis of this order on 17-2-1953 the memorandum of appeal was returned to the plaintiff-appellant for presentation to the Court having jurisdiction in the matter. On the same day the appellant's counsel took back the memorandum of appeal from the Court of the Senior Subordinate Judge and re-presented it in the Court of the District Judge at Amritsar.

4. It appears that when this appeal came up for hearing before the learned Additional District Judge, Shri Manohar Singh, who had returned the memorandum of appeal as Senior Subordinate Judge, happened to be the presiding officer of the appellate Court, viz., the Court of the Additional District Judge. Here again, an objection was raised on behalf of the defendant-respondent, that the appeal was barred by limitation. The learned Additional District Judge again gave effect to the preliminary objection and held the appeal to be barred by time.

It has been observed by him that no formal application under Section 5 of the Indian Limitation Act duly supported by an affidavit explaining the circumstances in which the memorandum of appeal had been presented by the counsel for the appellant or by the appellant himself in the Court of the Senior Subordinate Judge had been filed before him. From) this the learned Additional District Judge has concluded that it could not be said that the legal practitioner, who had filed the appeal in the wrong Court, had any sufficient grounds or justification for adopting that course.

The lower appellate Court has also observed, that a mistaken advice given by a legal practitioner may give rise to sufficient cause in given circumstances but the advice must be given in good faith, i.e., with due care and caution. The circumstances in which the appeal was filed haying not been explained, the lower appellate Court felt constrainedto hold that no sufficient cause for the exercise of power under Section 5 had been established on the record. It appears that the certified copy of the judgment supplied to the plaintiff-appellant bore the value of the suit for purposes of jurisdiction as Rs. 200/-, but it seems that on 22-5-1952, Shri Onkar Nath. Subordinate Judge 4th Class, in whose Court the suit was initially pending, had passed an order, on the basis of the statement of the plaintiff as P.W. 3. claiming about Rs. 15,000/- to Rs. 20,000/- from the defendant, that his Court had no jurisdiction to try the suit.

With this observation the case had been forwarded by Shri Onkar Nath to the learned District Judge for being sent to some other Court having jurisdiction to try the suit. In pursuance of this order, it appears, that the learned District Judge on 26-5-1952 had transferred the present suit to the Court of Shri Kartar Singh Gambhir, Subordinate Judge 1st Class, Amritsar, for disposal. From those facts-the learned Additional District Judge concluded that there was no bona fide or honest mistake on the part of the counsel for the plaintiff-appellant. It was also observed in this connection that it was the same counsel, who both conducted the suit in the original Court, and filed the appeal, in the Court of the Senior Subordinate Judge, and also in the Court of the District Judge.

5. Against the judgment and decree of the learned Additional District Judge, the plaintiff has preferred a second appeal in this Court. As mentioned above, there is also a revision against the order dated 26-5-1952 of the learned District Judge transferring the case, to the Court of Shri Kartar Singh Gambhir, for disposal, and the whole record is now before me.

6. Mr. Rup Chand, the learned counsel for the appellant, has submitted that the appeal was initially correctly filed in the Court of the learned Senior Subordinate Judge. His submission is that in the plaint the valuation for purposes of jurisdiction continued to be Rs. 200/-. The impression which Shri Onkar Nath, Subordinate Judge 4th Class, formed from a statement made by the plaintiff in the witness-box, that he expected to be due from the defendant about Rs. 15,000/- or Rs. 20,000/-after going into accounts, did not ipso facto amount to variation in the valuation of the suit for purposes of jurisdiction and that the value of the suit in law continued to be Rs. 200/- for the purposes of appeal.

In the alternative he has contended that even if the valuation be deemed to have been varied by virtue of the order passed by Shri Onlcar Nath, Subordinate Judge 4th Class, while forwarding the case to the learned District Judge, there was sufficient ground for the learned Additional District Judge to extend the period under Section 5 of the Indian Limitation Act. The counsel submits that the memorandum of appeal was refiled in the Court of the District Judge without any undue delay after its return by the Senior Subordinate Judge. The mere fact that no formal application under Section 5 of the Indian Limitation Act had been presented does not and should not operate as an absolute bar to the lower appellate Court itself considering the question of extension of time. The entire material was on the record and no new facts outside the record were to be alleged or pleaded by the plaintiff-appellant.

7. As against this, Mr. D. R. Manchanda has very ably argued that it is open under the law to the trial Court at any stage to determine the value of a suit for the purnoses of jurisdiction in a suit for accounts and in the present case Mr. Onkar Nath had actually determined the amount of value of the suitto be from Rs. 15,000/- to Rs. 20,000/-. In any casethe jurisdiction was, according to the counsel, high enough to justify an appeal in the Court of the learned District Judge and not in the Court of the Senior Subordinate Judge. Mr. Manchauda also submitted that the appellant was estopped from challenging the value for the purposes of jurisdiction, because he had acquiesced in the order by accepting the memorandum of appeal back from the Court of the Senior Subordinate Judge and by preferring the appeal in the Court of the learned District Judge.

8. In my opinion, the order of Shri Onkar Nath, learned Subordinate Judge 4th Class, does not amount to any precise determination of the value of the suit for the purposes of jurisdiction. In order to amount to a determination under Rule 4 framed by the High Court by virtue of the power conferred by Section 9 of the Suits Valuation Act, the Court must apply its mind and come to a precise determination as to what is the value of a suit for the purposes of jurisdiction. To say that 'he plaintiff expects, after going into accounts, to find a sum of Rs. 15,000/- to Rs. 20,000/- to be due to him does not amount to a precise determination as is. contemplated by rule 4. It is not disputed Shat. the plaint was not formally amended. Under the law and procedure the value for the purposes of jurisdiction has to be contained in the plaint.

After the matter is determined by the Court it must, in order to be effective, result in amendment of the plaint by substituting the amount so determined, in place of the original valuation fixed in the plaint. Admittedly this course was not followed. The mere fact that the appellant took back the memorandum of appeal from the Court of the Senior Subordinate Judge and, in compliance with that order, represented the appeal in the Court of the learned District Judge, cannot, in my opinion, amount to estoppel. If the Senior Subordinate Judge was competent to entertain and dispose of the appeal, the conduct of the parties could not take away that jurisdiction and could not confer on the District Judge a jurisdiction, which did not, under the statute, vest in him. It is well established that there can be no estoppel, against a statute.

9. This aspect apart, a revision has also been preferred in this Court against the order of the learned District Judge dated 26-5-1952 and the whole record is before this Court. In these circumstances it is futile to contend that the plaintiff is estopped from showing that the Court of the Senior Subordinate Judge had jurisdiction tp entertain and dispose of the appeal on the merits. In this view of the matter, in my opinion, the value for the purposes of jurisdiction in the present case continued to be Rs. 200/- because the suit for accounts was dismissed. It is only where a suit for accounts is decreed, that the decretal amount determines the forum of appeal; in case of dismissal of the suit, the original value continues to be the value for the purposes of determining the forum of/appeal.

10. Even if the value for the purposes of Jurisdiction were to be deemed to have been varied by virtue of the order of Shri Onkar Nath, in my view, this was eminently a fit case in which discretion under section 5 of the Limitation Act .should have been exercised in favour . of the appellant. The discretion under section 5 has to be a judi-cia! discretion and not an arbitrary one. Merely because there was no written application filed by the appellant was hardly a sufficient ground for refusing him the relief, if he was otherwise en-titled to it.

It has frequently been held that procedure is meant for advancing and not for obstructing the cause of justice; and if the entire material was on the record, as in the present case it obviously was, it could not promote the ends of justice, if that material was ignored and the relief refused to the appellant, merely because he had not claimed it by means of a formal application in writing or that a formal affidavit was not filed. The language of section 5 of the Limitation Act does not provide that an application in writing must be filed before relief under the said provision can be granted. In Mt. Kulsoomun Nissa v. Noor Moharnmad, AIR 1936 All 666, Sulaiman C. J. and Bennet J. observed as follows:

'The first ground on which the appeal has been dismissed by the lower appellate Court is that the plaintiffs had not' made any formal application for an extension of time under section 5, Limitation Act, and that, therefore, their appeal against Hakim Shyam Sunder Lal was beyond time. In our opinion the Court below has erred in exercising its discretion in this matter.'

However, in view of my decision on the first point it is not necessary for me to pursue this matter any further,

11. For the reasons given above, the appeal must be allowed and the case remanded back to the learned Senior Subordinate Judge for disposal according to law. In so far as the revision is Concerned, now that the case has been finally disposed of by Mr. K. Section Gambhir I do not think any useful purpose will be served by setting aside the order of the learned District Judge dated 26th of May 1952.

12. It appears to me that the plaintiff-appellant is not completely free from blame; even the revision filed by him against the order dated 26th of May 1952 was filed in this Court in October 1954; in fairness, therefore, he must be put to terms and he must pay to the respondent a sum of Rs, 100/- by way of costs before he can claim hearing of the appeal in the Court of the learned Senior Subordinate Judge. The costg should be deposited on or before the 9th of February 1959. Case, to come up on 9th of February 1959.

(The rest of the judgment is not material forreporting),


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