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Mohamed Sali Vs. Mary Gonrath Fernando and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberLetter Patent Appeal No. 68 of 1969
Judge
Reported inAIR1974Mad286
ActsCode of Civil Procedure (CPC), 1908 - Order 7, Rule 10
AppellantMohamed Sali
RespondentMary Gonrath Fernando and ors.
Cases ReferredGanga Prasad v. Ramanand
Excerpt:
.....plaint acting in violation of order vii rule 10 civil procedure code (act v of 1908)--plaint presented into later court must be deemed to be continuation of plaint presented in earlier court--no question of limitation would arise.;the court at t. acted in violation of order vii, rule 10, civil procedure code, when it returned the plaint although it had jurisdiction. this order being an illegal order and the plaint having been presented within time in a court having jurisdiction, the crucial date for purposes of limitation is the date on which the plaint was presented in the court at t. and not on the date on which it was represented in the court at n. consequently, the plaint which was presented in the court at n. was only a continuation of the plaint, which had been wrongly..........present letters patent appeal has been filed by the defendant.4. the question arises whether the plaint returned by the tuticorin court for presentation to the proper court should be regarded as a continuation of the plaint presented in the nagarcoil court. if it is so regarded, no question of limitation would arise. if, on the other hand, the plaint presented in the nagarcoil court is to be treated as a fresh plaint, the suit must be held barred by limitation because on the date of presentation of the plaint in the nagarcoil court, the period of limitation had expired.5. before dealing with this question, it is right to point out that all the three courts, concurrently, held that the promissory note was executed at tuticorin. this is a finding of fact which is binding upon the.....
Judgment:
1. An interesting question of law arises in this Letters Patent appeal, which is directed against a second appellate judgment of this court, and it arises under the following circumstances.

2. The plaintiff, who is the respondent in this appeal, instituted a suit in the court of the District Munsif, Tuticorin, for the recovery of moneys due under a promissory note executed by the defendant, who was a resident of Nagarcoil. The plaintiff alleged that the promissory note was executed at Tuticorin and that consequently the cause of action had arisen within the territorial limits of the Tuticorin court. The suit itself was instituted on the last day of limitation. The defendant appeared in the Tuticorin of which was that inasmuch as the promissory note had been executed at Nagarcoil and not at Tuticorin and he himself was residing at Nagarcoil, no part of the cause of action had arisen within the territorial limits of the Tuticorin court. As many as 7 issues were framed upon the pleadings and issue No. 3 related to the territorial jurisdiction of the Tuticorin court. But, before the trial commenced, that is to say, on 28-7-1959, the plaintiff's agent made an endorsement on the plaint to the following effect--

"Plaintiff prays that the plaint may be returned for presentation to the Nagarcoil court where the defendant resides".

Without going into the question of jurisdiction on the merits the Tuticorin court accepted this request of the plaintiff and passed an order in the following terms:

"Today an endorsement has been made in the plaint. Further it is seen that the defendant resides at Nagarcoil area and the entire cause of action arose at Nagarcoil. Plaint is returned for presentation to the proper forum. If the plaint is not represented within the transit period allowed under law, the defendant would be entitled to claim his cause from the plaintiff. Plaint is returned. If represented within time, costs to abide by the result of the suit."

3. The plaint was actually returned to the plaintiff on 6th August, 1959. The plaintiff presented this plaint in the Nagarcoil court on 19th August, 1959 along with a fresh plaint. The Nagarcoil court entertained both the plaints, treated the court fee paid on the earlier plaint as court-fee due on the fresh plaint and proceeded with the trial after issuing summons to the defendant, giving an opportunity to the defendant to file an answer, framing issues, recording evidence and ultimately, holding that inasmuch as the plaint had been presented in the Nagarcoil court long after the expiry of the period of limitation, the suit was barred by time. The first appellate Court reversed this judgment and granted a decree in favour of the plaintiff. In the second appeal, the judgment of the first Appellate Court was upheld, and against that judgment, the present Letters Patent Appeal has been filed by the defendant.

4. The question arises whether the plaint returned by the Tuticorin court for presentation to the proper court should be regarded as a continuation of the plaint presented in the Nagarcoil court. If it is so regarded, no question of limitation would arise. If, on the other hand, the plaint presented in the Nagarcoil court is to be treated as a fresh plaint, the suit must be held barred by limitation because on the date of presentation of the plaint in the Nagarcoil court, the period of limitation had expired.

5. Before dealing with this question, it is right to point out that all the three courts, concurrently, held that the promissory note was executed at Tuticorin. This is a finding of fact which is binding upon the appellant herein. It would then follow that the return by the Tuticorin court of the plaint was made on the erroneous basis that that court had no jurisdiction to entertain the suit. It is true that as the defendant resided within the territorial limits of the Nagarcoil court, the suit could be filed in the Nagarcoil court as well. The resulting position is that both the Tuticorin court and the Nagarcoil court had jurisdiction to entertain the suit instituted by the plaintiff. The Tuticorin court did not record evidence as to the exact place where the promissory note was executed. Had it done so, it would have, like the Nagarcoil court, arrived at the conclusion, that the promissory note had been executed at Tuticorin, in which case the Tuticorin court would have refrained from returning the plaint. Under Order 7, Rule 10, C.P.C.--

"(1) the plaint shall at any stage of the suit be returned to be presented to the court in which the suit should have been instituted........."

6. In this case, as it transpires from the finding of the Nagarcoil court, the promissory note was executed at Tuticorin. Therefore, the Tuticorin court had jurisdiction, equally with the Nagarcoil court, to entertain the suit. The Tuticorin court acted in violation of Order 7, Rule 10. C.P.C., when it returned the plaint although it had jurisdiction. The order being an illegal order and the plaint having been presented within time in a court having jurisdiction, we think that the crucial date for purposes of limitation is the date on which the plaint was presented in the Tuticorin court and not the date, on which it was represented in the Nagarcoil court. We find support for this view in the ruling of the Lahore High Court, viz., Amarnath v. Hakim Rai, AIR 1929 Lah 248, where a Division Bench of that court had held as follows: (at page 249):--

"The main contention of the learned counsel for the appellant is that the Junior Subordinate Judge's order under Order 7, Rule 10, C.P.C. and that when the plaint is returned under that rule and presented to a competent court the suit must be taken to be instituted on the date on which it is presented to the latter court. In the present instance, however, it seems to me that Order 7, Rule 10 was really not applicable at all, as the Junior Subordinate Judge had not come to any definite finding on the question of jurisdiction and was merely of opinion that there was just a possibility that the case may be outside his jurisdiction. The plaintiff also had not asked for return of the plaint under that rule but had requested that the case be transferred to a competent court. The proper course for the Junior Subordinate Judge would have been to move the District Judge to transfer the case, but instead of doing so, he erroneously returned the plaint to be presented to the Senior Subordinate Judge. The Junior Subordinate Judge has not expressly referred to Order 7, Rule 10. C.P.C. and the certainly had no jurisdiction to act under that rule as he had come to no definite finding that he had no jurisdiction to deal with the suit. There was also no question of any withdrawal of the first suit or fresh institution thereof...... I hold that there was no fresh institution of the suit and the suit was merely t be continued in the court of the Senior Subordinate Judge. This view is supported by the decision in Ganga Prasad v. Ramanand, 30 Ind Cas 544 = (AIR 1915 All 344(1)), in which the facts appear to have been somewhat similar."

7. Though the facts of that case are not on all fours with the facts of the present case, the principle laid down in that ruling is applicable to the facts of this case. Consequently, we hold that the plaint, which was presented in the Nagarcoil court, was only a continuation of the plaint, which had been wrongly returned by the Tuticorin court. The proper date on which the plaint must be taken to have been filed is the date on which it was filed in the Tuticorin court and that date falls well within the period of limitation. We, therefore, agree with the learned second appellate Judge and dismiss this Letters Patent appeal with costs. Before parting with this case, we wish to record our appreciation of the able assistance rendered by Mr. M. Srinivasan as amicus curiae.

8. Appeal dismissed.


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