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Narayana Kurup Parameswara Kurup Vs. N. Vasudeva Kurup - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 12 of 1963
Judge
Reported inAIR1964Ker285
ActsLimitation Act, 1908 - Sections 14; Code of Civil Procedure (CPC) , 1908 - Order 7, Rule 10
AppellantNarayana Kurup Parameswara Kurup
RespondentN. Vasudeva Kurup
Appellant Advocate K.N. Narayanan Nair, Adv.
Respondent Advocate P. Krishnamoorthy, Adv.
DispositionPetition dismissed
Cases Referred(Cal) and Ganga Charan v. Akhil Chandra
Excerpt:
.....once it finds that it has no jurisdiction to entertain the suit in question. according to the learned counsel, shertallal court has certainly got jurisdiction, having due regard to the provisions of section 14(1) read with explanation i of the indian limitation act, when once it is satisfied that the court where the suit has been instituted suffers from lack of jurisdiction or other cause of a like nature, and as such is unable to entertain it, to glue a reasonable time to the plaintiff to represent the plaint in the proper court. mukherjes, 6 ind cas 637 (cal). if that decision still holds good and continues to be goad law, then if i may say so with respect, there can be no controversy that the contention of the learned counsel for the petitioner, in this case, will have to be..........alleppey, dismissing his suit s. c. s. no. 320 of 1961 as having been instituted out of time. the learned munsif, in the view that she took that the suit was barred by limitation, did not go into the various other points in controversy between the parties.2. it will be seen that the plaintiff originally instituted the suit in the shertallai munsif's court on 26-6-1961; and it is accepted that that was the last day on which the suit, on the basis of the transactions relied upon by the plaintiff, should have been instituted in any court so that it could be considered to have been filed within the period of limitation. whether objection was taken or not, it is ultimately seen that an order was passed by the learned principal munsif of shertallai on 21st november 1961, directing the return.....
Judgment:
ORDER

C.A. Vaidialingam, J.

1. In this revision petition Mr. T. P. Malhai, learned counsel for the plaintiff petitioner, challenges the decree of the learned Additional Munsiff, Alleppey, dismissing his suit S. C. S. No. 320 of 1961 as having been instituted out of time. The learned Munsif, in the view that she took that the suit was barred by limitation, did not go into the various other points in controversy between the parties.

2. it will be seen that the plaintiff originally instituted the suit in the Shertallai Munsif's Court on 26-6-1961; and it is accepted that that was the last day on which the suit, on the basis of the transactions relied upon by the plaintiff, should have been instituted in any court so that it could be considered to have been filed within the period of limitation. Whether objection was taken or not, it is ultimately seen that an order was passed by the learned Principal Munsif of Shertallai on 21st November 1961, directing the return of the plaint for presentation before the proper court. So far as that direction is concerned, there can be no controversy that it is well within the jurisdiction of the court, once it finds that it has no jurisdiction to entertain the suit in question. Then there is a further direction to the effect : 'Time for representation, one month'.

3. On the basis of the said order of the Principal Munsif of Shertallai, there is again no controversy, that the plaintiff presented the plaint in question before the learned Additional Munsif of Alleppey, only on 20th December 1961. No doubt, if the learned Munsif of Shertallai.' who passed the order on 21st November 1961 giving the plaintiff time for representation, namely one month, had jurisdiction to give that time, and by that order the plaintiff in law would have an extended period of limitation, then, it can certainly be held that the presentation of the plaint before the Alleppey Court must be considered to have been within time. But objection was taken by the defendant that notwithstanding the direction given. In the order of the learned Munsif of Shertallai, giving one month's time for re-presentation of the plaint, that order is absolutely one without jurisdiction and that the said court had no power to enlarge the period of limitation. On the other hand, objection appears to have been taken that the plaintiff, in order to save his plaint from the bar of limitation, should be able to satisfy the court that he has come within the time provided for in Section 14(1) read with Explanation 1 of the Indian Limitation Act, 1908.

4. The learned Munsif, in the judgment which is under attack in this revision petition, is of the View that the learned Munsif of Shertallai had no jurisdiction to give one month's time, as he has purported to do. In his order dated 21st November 1981, and therefore, inasmuch as the suit itself has been filed in court out of time, it will have to be dismissed as barred by limitation, even on the basis of the allegations contained in the plaint itself. Therefore, holding that the suit is barred by limitation, the learned Munsif did not go into the other points arising for decision on merits. Ultimately the learned Munsif has dismissed the suit, as barred by limitation.

5. Mr. Mathai, learned counsel for the petitioner, challenges the dismissal of the plaintiff's suit as having been barred by limitation by the learned Munsiff of Alle-ppey. According to the learned counsel, Shertallal court has certainly got jurisdiction, having due regard to the provisions of Section 14(1) read with Explanation I of the Indian Limitation Act, when once it is satisfied that the court where the suit has been instituted suffers from lack of jurisdiction or other cause of a like nature, and as such is unable to entertain it, to glue a reasonable time to the plaintiff to represent the plaint in the proper court. The learned counsel further urged that his client has re-presented the plaint before the Alleppey court within the time allowed by the learned Munsif of Shertallai in his order dated 21st November 1961.

6. In this connection, the learned counsel for the plaintiff petitioner placed considerable reliance upon a very early decision of the Calcutta High Court reported in Nibaran Chandra v. S. C. Mukherjes, 6 Ind Cas 637 (Cal). If that decision still holds good and continues to be goad law, then if I may say so with respect, there can be no controversy that the contention of the learned counsel for the petitioner, in this case, will have to be accepted, and the institution of the suit before the learned Munsif of Alleppey must be held to be within time. But the correctness of that decision has been very strenuously challenged by Mr. P. Krishnamoorthy Iyer, learned counsel appearing for the defendant respondent in these proceedings.

7. No doubt, a Division Bench of the Calcutta High Court, in the decision relied upon by the learned counsel for the petitioner in 6 Ind Cas 637 (Cal), having due regard to the provision of Section 14 of the Limitation Act, has come to the conclusion that it is ooe-n to a court, when it returns a plaint on the grounds mentioned in Section 14 of the Act, to give a reasonable time to the plaintiff for the purpose of representation of the plaint in the proper Court. As to what will be the reasonable time the learned Judges have held, is entirely a matter for the Court which gives that direction to decide. If it is only a question as to whether the time given by the teamed Munsif of Shertallai, namely, one month, is reasonable or not, I would have had considerable reluctance to interfere with such a discretion exercised by the Court. But, the jurisdiction of the Court itself to grant that time, is in serious controversy, as I mentioned earlier, in these proceedings.

8. Mr. P. Krishnamoorthy lyer, learned counsel for the defendant respondent, has drawn my attention to the observations of the Privy Council in the decision reported in Ramdutt v. E.. D. Sassoon and Co., AIR 1929 PC 103 at p. 107, wherein their Lordships have stated that

'It is quite clear that where a suit has been Instituted in a court which is found to have no jurisdiction andIt is found necessary to raise a second suit in a court of proper jurisdiction, the second suit cannot be regarded as a continuation of the first, even though the subject matter and the parties to the suits were identical'.

These observations were relied upon by tha learned coun-set for the defendant respondent in support of his contes-tion that the plaint filed before the learned Munsif of Alleppey, must be considered to be institution of ft ran for the first time, and inasmuch as the plaintiff has not been able to satisfy the court that the condition prescribed in Section 14(1) reed with Explanation I of the Limitation Act are fulfiled the rejection of the suit, on the ground of its being barred by limitation, must be sustained by this Court.

The learned counsel also drew my attention to two later decisions of the Calcutta High Court, namely those reported in Haridas Roy v. Sarat Chandra Dey, 18 Ind Cas 121 (Cal) and Ganga Charan v. Akhil Chandra, AIR 1917 Cal 794. Both these decisions are again of the Calcutta High Court; and it will be particularly seen that in the decision reported in 18 Ind Cas 121 (Cat), a Division Bench of the same High Court has adverted to Its earlier decision reported in 6 Ind Cas 637 (Cal) railed upon before me by the learned counsel for the petitioner. The learned Judges of the Calcutta High Court in the later decision expressly dissented from the earlier decntion of that Court in 6 Ind Cas 637 (Cal). That is why whan we come to the still later decision of the Calcutta High Court in AIR 1917 Cal 794 -- which again is a judgment of a Division Bench -- there is no further reference to the- earliest decision of the Calcutta High Court, namely 6 Ind Cas 637 (Cal).

On the other hand, the learned Judges, who areparties to the decision in AIR 1917 Cal 794 specificallyfollow the earlier decision reported in 18 Ind, Cas 121(Cal), wherein, as I have already stated, there is a specificdissent from the earlier decision reported in 6 Ind Cas637 (Cal). A Division Bench of the Patna High Court in the decision reported in Firm Jiwan Ram Ramchandra v.Jagernath Sahu, AIR 1937 Pat 495 has also taken thasame view as in 18 Ind Cas 121 (Cai) and AIR 1917 Cal794.

9. I respectfully adopt the reasoning of the learned Judges of the Calcutta High Court in the decision! it-ported in 18 Ind Cas 121 (Cal) and AIR 1917 Cal 794, as well as in the decision of the Patna High Court in AIR 1937 Pat 495, and hold, in the circumstances of the case, that the view of the learned Munsif of Alleppey that the suit of the plaintiff has to be dismissed pn tha ground of its being barred by limitation, will have to be sustained. As I have already stated, in view of the fact that I am accepting the rejection of the plaintiff's suit on the ground of limitation, no other question arises for consideration at all. Therefore, it follows that the revi-sion petition fails and is dismissed. But parties will bear their own costs.


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