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Subbarau Nayudu Vs. Yagana Pantulu and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Judge
Reported in(1896)ILR19Mad90
AppellantSubbarau Nayudu
RespondentYagana Pantulu and anr.
Cases ReferredChunder Madhub Chuckerbutty v. Bissessuree Debea
Excerpt:
.....chetti v. 2. section 14 of the limitation act allows such exclusion if the former suit was prosecuted with due diligence and in good faith in a court which, from defect of jurisdiction or other cause of a like nature, was unable to entertain it. 299 the first suit had failed by reason of misjoinder of causes of action and parties, and hence plaintiff was held not entitled to exclude the time it was pending. in all these cases it will be observed that the condition was one within the power of the party to fulfil, and it was default or defect in himself and not a 'defect of jurisdiction' in the court which entertained the suit 'or other cause of a like nature' that deprived him of the time occupied in carrying it on to a failure. being then accepted as good in law, he could hardly..........plaintiff is entitled to exclude, from the computation of the period of limitation for his present suit, the time his former suit was pending in the court.4. rencontre-attorney for plaintiff.1. section 18: subject to the exceptions in section nineteen, the suits in which court has small cause court shall have jurisdiction to try all suits of a jurisdiction. civil nature when the amount or value of the subject-matter does not exceed two thousand rupees, and (a) the cause of action has arisen, either wholly or in part, whihin the local limits of the jurisdiction of the small cause court, and the leave of the court has, for reasons to be recorded by it in writing, been given before the institution of the suit. 2. section 30: where there are numerous parties having the same one party may.....
Judgment:

1. This suit No. 6550 of 1895 was instituted in the Presidency Small Cause Court on the 26th April last under Section 18(a)1 of Act XV of 1882, the leave of the Court having first been given as was necessary, because the defendants do not reside within the local limits of its jurisdiction but in the Kistna District. A precisely similar suit had been filed on the 25th of March 1892 by the leave of the Registrar of the Court, and it was pending until the 26th April, last, when it was thrown out on the ground that the Court had no jurisdiction to entertain it, because the leave of the Registrar was not the leave of the Court as had recently been declared by the High Court Rajam Chetti v. Seshayya I.L.R. 18 Mad. 236. Up till then, the Registrar had been exercising the power for many years under a rule passed by the High Court in 1885, which was now found to be ultra vires. The plaintiff's present suit is barred by limitation if he cannot claim the benefit of Section 14 of the Limitation Act, and that is the question referred to us, whether the time from the 25th of March 1892 to the 26th of April 1895 during which he was prosecuting his former suit should be excluded in computing the period of limitation for the present suit.

2. Section 14 of the Limitation Act allows such exclusion if the former suit was prosecuted with due diligence and in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, was unable to entertain it. It is not contended that the plaintiff was in fact negligent in prosecuting the suit, the long pendency of which was owing to no fault of his, nor that he did not act bond fide in bringing the suit on the sanction of the Registrar, which was then supposed to be a valid sanction even by the Court itself. What is contended is that he is responsible in law for his omission to obtain the leave of the Court, and it was only by reason of that omission that the Court was divested of its jurisdiction. In support of the first proposition several cases are cited. In Ramakristna Sastrulu v. Darba Lakshmidevamma 1 M.H.C.R. 320 it was held that the statute of limitations was not suspended in consequence of plaintiff's misfortune or negligence in not producing a certificate required by law, for want of which his previous suit had been dismissed. In Bai Jamna v. Bai Ichha I.L.R. 10 Bom. 604 the plaintiff was held not entitled to deduct the time she was engaged in prosecuting the first suit, because that was dismissed owing to the non-production of a registered certificate due to her own laches. In Krishnaji Lakshman v. Vithal Ravji Renge I.L.R. 12 Bom. 625 the plaintiff was not allowed the benefit of Section 14, because his previous suit was defective for want of parties and was withdrawn by himself. In Tirtha Sami v. Seshagiri Pai I.L.R. 17 Mad. 299 the first suit had failed by reason of misjoinder of causes of action and parties, and hence plaintiff was held not entitled to exclude the time it was pending. In all these cases it will be observed that the condition was one within the power of the party to fulfil, and it was default or defect in himself and not a 'defect of jurisdiction' in the Court which entertained the suit 'or other cause of a like nature' that deprived him of the time occupied in carrying it on to a failure. Now in this case, it would be impossible to say that the plaintiff committed any fault when he complied with the rule sanctioned by this Court. Being then accepted as good in law, he could hardly have disputed it, especially as the Court to which he applied recognized and acted upon it. It cannot therefore be held that he was guilty of any omission, and it is conceded there was no actual negligence or want of bond fides on his part. To entitle a plaintiff to the benefit of the terms of Section 14 of the Limitation Act, it is sufficient to show 'that his suit had been prosecuted bond fide and with due diligence, and that the Court was unable to decide upon it from some cause quite unconnected with the default or negligence of the plaintiff.' Per Jackson, J., in Chunder Madhub Chuckerbutty v. Bissessuree Debea 6 W.R. 184.

3. Then as to the proposition that the Court had an inherent jurisdiction over the case, which it was prevented from exercising only by reason of the plaintiff's omission to obtain the requisite leave, we are not prepared to accede to it. It is argued that the case is similar to cases such as that under Section 302 of the Code of Civil Procedure where with permission of the Court one party may represent others in the suit, or such as those wherein the production of a certificate or other authority is a preliminary condition to a suit, without which the Court will not exercise its jurisdiction, albeit jurisdiction is vested in it. In this class of cases, however, the inability of the Court is not an inability to entertain the suit, but an inability to decide it until the condition is fulfilled, and it is an everyday occurrence to allow the omission to be supplied after the plaint is filed. But in this case the Presidency Small Cause Court had absolutely no jurisdiction until its leave had been obtained in writing 'before the institution of the suit,' because the defendants did not reside within its local jurisdiction. The Act conferring the jurisdiction is not only a special but a local Act, and it is an essential qualification that the leave of the Court be first given before it can exercise jurisdiction over defendants not residing within the local limits of its ordinary jurisdiction, and who otherwise are not subject to it. Its jurisdiction is excluded until it is specially conferred by the Court's own act, and that act must be performed prior to the institution of the suit. The Court had therefore no inherent jurisdiction, which makes all the difference between the case here in question and the class of cases referred to above, where there is no want of jurisdiction to begin with but only a refusal to exercise it for the time being. It is just as if a plaint were presented not in proper form or unverified; the Court would not act upon it--not because it had no jurisdiction, but because a prerequisite was wanting, which is allowed to be supplied afterwards by amendment. In the present case the Court was altogether debarred and precluded from receiving the plaint, as it had not given its prior consent to its entertainment and had no authority to accord it afterwards. It is urged that, that being the case, the Court should have returned the original plaint for presentation in the proper Court and the question of limitation need not then have arisen. But we give no opinion on this point, as it is not embraced in the reference made to this Court. With regard to that, we reply for the reasons given that the plaintiff is entitled to exclude, from the computation of the period of limitation for his present suit, the time his former suit was pending in the Court.

4. Rencontre-Attorney for Plaintiff.

1.

Section 18: Subject to the exceptions in Section nineteen, the

Suits in which Court has Small Cause Court shall have jurisdiction to try all suits of a

jurisdiction. civil nature when the amount or value of the subject-matter

does not exceed two thousand rupees, and

(a) the cause of action has arisen, either wholly or in part, whihin the local limits of

the jurisdiction of the Small Cause Court, and the leave of the Court has, for

reasons to be recorded by it in writing, been given before the institution

of the suit.

2.

Section 30: Where there are numerous parties having the same

One party may sue or interest in one suit, one or more of such parties may, with the

defend on behalf of all in permission of the Court, sue or be sued, or may defend, in such

same interest. suit on behalf of all parties so interested.

But the Court shall in such case give, at the plaintiff's expense, notice of the institution

of the suit to all such parties either by personal service or if from the number of parties or

any other cause such service is not reasonably practicable, by public advertisement, as the

Court in each case may direct.


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