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Bhagavatula Pankala Rao Vs. Kadiyala Venkatasubbayya - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported in(1947)2MLJ337
AppellantBhagavatula Pankala Rao
RespondentKadiyala Venkatasubbayya
Cases ReferredGurubhotlu v. Jogayya
Excerpt:
.....it seems to me that there are no such facts in the present case and there is nothing in the evidence to show that the court which heard the prior suit decided that the suit was bad for misjoinder or for multifariousness and put the plaintiff to his election. the material seems to indicate that the plaintiff clearly anticipated failure because of the objection taken in the written statement and met that objection by himself withdrawing the suit against the present respondent and proceeding with the suit against the other two defendants. the fact that it was at the instance of the plaintiff that the suit against the present respondent was dismissed is clearly indicated by the judgment which expressly gives the plaintiff liberty to file a fresh suit against the present respondent...........and two other individuals who were alleged to have similarly defaulted in connection with another lease. objection was taken in this suit to the misjoinder of the two causes of action. before the parties went to trial the advocate for the plaintiff endorsed on the record as follows:the plaintiff elects to proceed against defendants 1 and 2 in respect of the first part of the claim. he will file a separate suit in the proper form against the third defendant for realising the amount due from the third defendant. after the institution of the case plaintiff and defendants .1 and 2 have adjusted the matter. plaintiff has received rs. 116 from defendants 1 and 2 in adjustment and full satisfaction of his claim against defendants 1 and 2. the suit may be dismissed.on this endorsement the.....
Judgment:

Wadsworth, J.

1. The petitioner sued to recover an amount of seigniorage which he had been required to pay to the Government, alleging that this amount should have been paid by the respondent under the terms of an unregistered lease for quarrying limestone. The lease provided that the respondent should have the right for four years to quarry limestone in the petitioner's land in consideration of payment of rent for Rs. 200 and on the respondent undertaking to pay the seigniorage due to the Government. The rent was paid and according to the findings of the Court below the seigniorage was not paid by the respondent although the respondent did quarry limestone. The result was that the petitioner's land was attached and the petitioner was obliged to pay the seigniorage to the Government.

2. There was a previous suit, S.C. No. 157 of 1944, filed by the petitioner against the respondent and two other individuals who were alleged to have similarly defaulted in connection with another lease. Objection was taken in this suit to the misjoinder of the two causes of action. Before the parties went to trial the advocate for the plaintiff endorsed on the record as follows:

The plaintiff elects to proceed against defendants 1 and 2 in respect of the first part of the claim. He will file a separate suit in the proper form against the third defendant for realising the amount due from the third defendant. After the institution of the case plaintiff and defendants .1 and 2 have adjusted the matter. Plaintiff has received Rs. 116 from defendants 1 and 2 in adjustment and full satisfaction of his claim against defendants 1 and 2. The suit may be dismissed.

On this endorsement the Subordinate Judge wrote a judgment in which it was stated that the plaintiff elects to proceed against defendants 1 and 2 alone in respect of the first part of the claim, that he reserves to himself the right to proceed against the third defendant in proper Court to recover the amount claimed against him. Then follows a brief indication of the adjustment between the plaintiff and defendants 1 and 2 and the judgment concludes as follows:

Claim adjusted as endorsed on the plaint. Suit dismissed. Plaintiff is at liberty to file a suit against 3rd defendant for the second portion of the claim if not barred by time.

3. The third defendant in this earlier suit is the present respondent. It is common ground that the present suit is barred by limitation unless the petitioner is entitled to deduct the time occupied by the trial of S.C. No. 157 of 1944 under Explanation III to Section 14 of the Limitation Act. The lower Court has held that Section 14 has no application and the case is governed by Order 23, Rule 2 of the Code of Civil Procedure. I am of opinion that this decision is correct. It was laid down by Coutts Trotter and Phillips, JJ., in Amnachalam Chettiar v. Lakshmana Aiyar (1915) 29 M.L.J. 569 : I.L.R. 39 Mad. 936 that Section 14 of the Limitation Act applies only where the Court itself decides that it cannot entertain the suit; and it is not concerned with suits which are voluntarily withdrawn or abandoned by the plaintiff. Mr. Kameswara Rao for the petitioner has relied on the decision of Varadachariar, J., in Gurubhotlu v. Jogayya (1935) 42 L.W. 256. That was a case filed against the two sets of defendants. There was an objection taken on the ground of multifariousness. On this objection being taken the plaintiff himself admitted that the objection was good and elected to proceed against one set of defendants, the other defendants being given up and awarded their costs. There was no order permitting the defendants to file a fresh suit. On those facts the learned Judge decided that the plaintiff was not a voluntary agent deciding to abandon the suit in order to file another one which would be un-objectionable ; but that he had been bound to elect as a result of the Court's decision that the suit as framed was bad for multifariousness. It seems to me that there are no such facts in the present case and there is nothing in the evidence to show that the Court which heard the prior suit decided that the suit was bad for misjoinder or for multifariousness and put the plaintiff to his election. The material seems to indicate that the plaintiff clearly anticipated failure because of the objection taken in the written statement and met that objection by himself withdrawing the suit against the present respondent and proceeding with the suit against the other two defendants. The fact that it was at the instance of the plaintiff that the suit against the present respondent was dismissed is clearly indicated by the judgment which expressly gives the plaintiff liberty to file a fresh suit against the present respondent. Although the plaintiff did not in so many words ask for leave to withdraw the suit against the present respondent, he did in substance ask the Court to facilitate the filing of a fresh suit against him. The case to my mind clearly falls under Order 23, Rule 1 with the consequence that Rule 2 governs the case so far as limitation is concerned and not Section 14 of the Limitation Act. I therefore agree with the trial Court that the suit is barred by limitation.

4. I am also inclined to agree with the trial Court on the further question whether the lease is admissible in evidence having regard to the fact that it is unregistered. It has been argued that the covenant by the lessee to pay the seigniorage charge to the Government is a collateral obligation not affecting immoveable property and that evidence of this covenant can be given even though the lease as a lease should have been registered. This argument seems to me to overlook the fact that the obligation of the respondent to pay seigniorage charge to the Government is just as much part of the consideration for the lease as the obligation of the respondent to pay the rent to the petitioner. On both grounds, therefore, I am of opinion that the petition must fail. The petition is therefore dismissed with costs.


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