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Mooken Devassy Ouseph and Sons Vs. Rajappan Pillai - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 1608 of 1980 F
Judge
Reported inAIR1984Ker91
ActsLimitation Act, 1963 - Sections 2, 14 and 14(1); General Clauses Act, 1897 - Sections 3(22)
AppellantMooken Devassy Ouseph and Sons
RespondentRajappan Pillai
Appellant Advocate C.S. Ananthakrishna Iyer and; N. Subramanian, Advs.
Respondent Advocate K. Ravi Varma Thampan, Adv.
DispositionPetition dismissed
Cases ReferredIn Suraj Nath v. Union of India
Excerpt:
.....on accounts is what is the condition which should be satisfied so that the period of pendency of a suit filed in a court which had no jurisdiction to try the same can he excluded in computing the period of limitation for the suit? --(1) in computing the period of limitation 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 of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of like nature, is unable to entertain it. ' section 2(h), limitation act, which defines 'good faith' reads: (h) 'good faith'-nothing shall be deemed to..........on accounts is what is the condition which should be satisfied so that the period of pendency of a suit filed in a court which had no jurisdiction to try the same can he excluded in computing the period of limitation for the suit? if the plaintiff did not act with due care and attention and filed the suit in a wrong court can he take shelter under section 14, limitation act, 1963 ?2. the plaintiff, a partnership doing business, had a petrol bunk at parur within the jurisdiction of the munsif's court, parur. the defendant residing within the jurisdiction of the munsif's court, perum-bavoor, purchased petrol and oil from the bunk. as per the accounts kept by the plaintiff's at their head office at mattan-cherry some amounts were due from the defendant. for that a suit was instituted before.....
Judgment:
ORDER

K.K. Narendran, J.

1. The short question that arises for consideration in this Civil Revision filed by the plaintiff in a suit on accounts is What is the condition which should be satisfied so that the period of pendency of a suit filed in a Court which had no jurisdiction to try the same can he excluded in computing the period of limitation for the suit? If the plaintiff did not act with due care and attention and filed the suit in a wrong Court can he take shelter under Section 14, Limitation Act, 1963 ?

2. The plaintiff, a partnership doing business, had a petrol bunk at Parur within the jurisdiction of the Munsif's Court, Parur. The defendant residing within the jurisdiction of the Munsif's Court, Perum-bavoor, purchased petrol and oil from the bunk. As per the accounts kept by the plaintiff's at their head office at Mattan-cherry some amounts were due from the defendant. For that a suit was instituted before the Munsifs Court, Cochin. After trial, the Munsif's Court, Cochin found that it had no territorial jurisdiction to try the suit and returned the plaint for presentation before the proper Court. The plaint was taken back and then filed before the Munsifs Court, Parur. That Court held that the plaintiff was entitled to exclude the time taken for prosecuting the case before the Munsifs Court, Cochin, under Section 14, Limitation Act, 1963, and decreed the suit for that portion of the plaint claim which was not barred by limitation. Against the above judgment and decree, the defendant filed an appeal before the Additional District Court, Parur. The Additional District Judge held that the plaintiff did not act with due care and attention in filing the suit before the Munsifs Court, Cochin and hence the plaintiff was not entitled to exclude the time taken for prosecuting the case before that Court under Section 14, Limitation Act. Accordingly, the lower appellate Court set aside the judgment and decree of the trial Court and dismissed the suit. The plaintiff has challenged the above judgment and decree of the Court below in this civil revision.

3. Section 14(2), Limitation Act, 1963, for short the Limitation Act, reads:

'14. Exclusion of time of proceedings bona fide in Court without jurisdiction.--(1) In computing the period of limitation 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 of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of like nature, is unable to entertain it.'

Section 2(h), Limitation Act, which defines 'good faith' reads:

'(h) 'good faith'-- nothing shall be deemed to he done in good faith which is not done with due care and attention.'

As per Section 14(1) in computing the period of limitation for any suit the time taken to prosecute the same in a wrong Court shall be excluded if it was prosecuted in that Court in good faith. In view of the definition of 'good faith' contained in Section 2(h), Limitation Act, the definition of 'good faith' in the General Clauses Act, 1897 that 'a thing shall be deemed to be done in good faith where it is in fact done honestly, whether it is done negligeptly or not' is not relevant in construing Section 14, Limitation Act. So, if going by the plaint itself the suit was filed and prosecuted before a Court which cannot entertain the same for want of jurisdiction it cannot be said that that was done with due care and attention. For proving absence of good faith it is not necessary to establish that the plaintiff was dishonest in filing the suit before the wrong Court or that he did it mala fide. In view of the definition of 'good faith' contained in the Limitation Actif it was brought out that the suit happened to be filed and prosecuted in the wrong Court for want of due care and attention on the part of the plaintiff then it cannot be said that the plaintiff was prosecuting the case in that Court in good faith. So, a plaintiff who was careless will not get the time taken before a wrong Court excluded in computing the period of limitation for the suit. Only if it is brought out that the suit happened to be prosecuted before the wrong Court not because of any want of due care and attention on the part of the plaintiff that he can get the time taken before the wrong Court excluded under Section 14, Limitation Act, when it has been filed before the proper Court on the wrong Court returning the plaint for presentation before the proper Court.

In this case, it is clear from the plaint itself that the cause of action did not arise within the jurisdiction of the Court before which the suit was first filed and that the defendant was residing within the jurisdiction of another Court. Hence it cannot be said that the plaintiff took due care and attention before filing the suit before the wrong Court and hence the prosecution of the case before that Court could not be in good faith. So, the time taken before that Court cannot be excluded in computing the period of limitation of the suit when filed before the proper Court. If this be so, the suit was barred by limitation when it was filed before the proper Court and the dismissal of the suit as barred by limitation by the lower appellate Court does not call for any interference by this Court in revision.

4. In coming to the above conclusions I am fortified by the decision of the Supreme Court in Madhavrao v. Ram Krishna (AIR 1958 SC 767). In the above case, the respondent before the Supreme Court filed a suit before a Munsif's Court for possession and mesne profits without giving any valuation for purposes of jurisdiction with reference to the value of the properties claimed. A similar suit was also instituted by the respondent in the same Court in respect of another property. When that suit was dismissed after ten years or more, the respondent made an application to the Court pointing out that going by the value of the subject matter of the suit even on a moderate valuation the Court will have no pecuniary jurisdiction to try the suit. That application was allowed and the plaint was returned for presentation before the proper Court. The defendant raised a contention before the District Court in which the plaint was then filed that the respondent-plaintiff was not entitled to the exclusion of the time taken before the wrong Court in computing the period of limitation for the suit. The District Judge dismissed the suit though he rejected the above contention of the defendant. A Division Bench of the High Court of Bombay allowed the appeal and decreed the suit On obtaining certificates for appeal, the defendants came up in appeal before the Supreme Court. It was contended before the Supreme Court that the observation of the High Court that there was no proof that the plaintiff had not been diligently prosecuting the suit before the Munsif's Court or that it was not being prosecuted in good faith was wrong, that Section 14, Limitation Act, requires that the plaintiff must affirmatively show that the suit as originally instituted was being prosecuted in good faith and with due diligence and in that view the plaintiff failed to satisfy the conditions insisted by the section. Upholding the above contentions, the Supreme Court held :

'The question is not whether the plaintiff did it dishonestly or that his acts or omission in this connection were mala fide. On the other hand, the question is whether, given due care and attention, the plaintiff could have discovered the omission without having to wait for about 10 years or more.'

In para 8 of the judgment the Court further said :

'In our opinion, therefore, all the conditions necessary to bring the case within Section 14 have not been satisfied by the plaintiff. There could be no doubt about the legal position that the burden lay on the plaintiff to satisfy those conditions in order that he may entitle himself to the deduction of all that period between 31st Jan., 1929 and 4th July, 1940. It is also clear that the Courts below were in error in expecting the contesting defendant to adduce evidence to the contrary. When the plaintiff has not satisfied the initial burden which lay upon him to bring his case within Section 14, the burden would not shift, if it ever shifted, to the defendant to show the contrary.'

In Radhey Shyam v. Beni Ram (AIR 1967 All 28) it has been held :

'Under Section 14, Limitation Act, what has to be seen is the mental state of theplaintiff, whether he acted in good faith and diligently prosecuted the previous suit. It may be that the fact of there being or there not being an agreement, as alleged in the plaint, may also be taken into consideration but the ultimate factor which has to be determined is the good faith of the plaintiff.'

In Suraj Nath v. Union of India (AIR 1975 Cal 203) the High Court of Calcutta has held:

'In order to get a benefit of the provisions of Section 14 the Court must be satisfied that the person acted in good faith, and proceeded with the case with due diligence. Mere filing a suit in a wrong Court does not prima facie show want of good faith. If the plaintiff proceeds honestly the question of want of good faith does not arise, even if he acts negligently. If a person files a suit in a Court in the belief that the said Court has got jurisdiction to entertain the same without evil intention but honestly to have his remedy, it cannot be said that the suit was not filed in good faith. If, however, a person with ulterior motive to put the defendant in a difficult position and to harass him files the said suit in that Court then, of course, the question of mala fides comes in. Tlhe said question, therefore, depends upon the facts of each individual case; in the absence of evil intention or any such designs the institution of the suit by the plaintiff in a wrong Court can-not prima facie show want of bona fides.'

With respect, I wish to point out that the above two decisions run counter to the decision of the Supreme Court in Madhav Rao's case (AIR 1958 SC 767).

5. In the result, the civil revision is dismissed. No costs.


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