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Thurutheelakath Thottinakkara Puthia-purayil Kunhi Kuttiali, Karnavan and Manager of the Tavazhi Tarwad and MaIn Tarwad and ors. Vs. Tharayil Peetikayil Kunhammad and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1923Mad278; 73Ind.Cas.139; (1923)44MLJ179
AppellantThurutheelakath Thottinakkara Puthia-purayil Kunhi Kuttiali, Karnavan and Manager of the Tavazhi Tar
RespondentTharayil Peetikayil Kunhammad and anr.
Cases ReferredSrimati Nrityamony Dassi v. Lakhon Chunder Sen
Excerpt:
.....by their lordships of the privy council in srimati nrityamony dassi v. the privy council said that it would have been better if in those proceedings they had been turned from defendants into plaintiffs, but they still held that although they remained defendants, they were bona fide litigating their rights in court of justice. it appears to me clear therefore that he was prosecuting his claim with due diligence and in good faith in another civil proceeding. the, only other point is whether he was prosecuting his claim in a court which could not try it because of defect of jurisdiction, or other cause of a like nature. that is a cause of a like nature with defect of jurisdiction. this is clearly a case in which the plaintiff has been honestly trying his best to get his case tried on the..........court upon his decision was, then, on the issues in that case it could not have been held that the present claim was not being tried; and on the other hand, had the appellate court upheld the original court's decision and had the receiver proceeded to carry out the orders of the original court, there would have been no cause of action left for the present plaintiff to sue. it appears to me clear therefore that he was prosecuting his claim with due diligence and in good faith in another civil proceeding. then as to whether the proceeding was founded upon the same cause of action, i do not think there can be any doubt, although the form in which the plaintiff got his relief in the district munsif's court was framed in a declaratory form with a declaration that he had a charge for his money.....
Judgment:

Walter Salis Schwabe K.C., C.J.

1. This case raises a rather difficult point under the Limitation Act. The facts are these: The Plaintiff was the Manager of a mosque. The Defendants are the Trustees of that mosque. Some years ago, disputes arose among the trustees inter se and between some at any rate of the trustees and the plaintiff. Those disputes culminated in a suit, O.S. No. 579 of 1910, before the District Munsif of Cannanore. The suit was by some of the trustees for the appointment of a receiver to the property of the mosque and for the removal of the present plaintiff, who, they alleged, was indebted in a sum of Rs. 1,000 to them. The present plaintiff, then the 1st defendant in that Suit, put in a written statement in which he disputed the right of the then plaintiffs to bring the action, objected strongly to a receiver being appointed and incidentally alleged that, so far from his being indebted to the mosque, the mosque was heavily indebted to him. Issues were framed and one of the issues (No.3) was, ' Is the 1st defendant indebted to the mosque or vice versa? In how much? ' Another issue (No. 5) was ' if the mosque is found indebted to the 1st defendant has the 1st defendant not to be paid, the amount due to him before his removal? What arrangement may be made for his removal, if at all, in that case?' That issue, apparently put upon the record upon the invitation of the present appellants, though presumably assented to by the present 1st respondent (plaintiff) was very fully inquired into by the District Munsif and at his direction commissioners were appointed specially to investigate that matter with the result that it was found by the District Munsif that there was a sum of Rs. 3,302 due and owing by the mosque to the present plaintiff. He appointed a receiver and removed the present plaintiff from his position although he held that he had not been guilty of any misconduct and that the trustees were not unanimous in desiring his removal, and he directed that the receiver should take steps to have all claims of the present plaintiff settled as soon as may be possible. After that decree the receiver took possession and in pursuance of the decree, paid to the present plaintiff a considerable part of the amount which had been found to be due to him. An appeal was taken from the District Munsifs decree to the Subordinate Judge and before him the points argued were, first, whether the suit by some of the trustees alone was maintainable and, secondly, whether, on the finding that the mosque was the debtor to the present plaintiff for more than Rs. 2,500 the lower Court should have dismissed the plaintiff's suit for money or have returned the plaint for presentation to the proper court. He held that the suit was in the proper Court as far as the money claimed was concerned but held, that in the circumstances some only of the trustees were not competent to sue and therefore reversed the judgment and dismissed the whole suit. The present plaintiff, not getting the balance of the amount that had been found due to him, then brought this action and he is met by the defence that not having sued for three years his suit is barred by the Limitation Act. He answers that by saying that the time occupied in the previous suit should be deducted from the three years period. The principle to be applied turns upon the proper interpretation of Section 14 of the Limitation Act, 1908 which runs thus: ' In computing the period of Limitation prescribed 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 in a court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a court which from defect of jurisdiction or other cause of a like nature, is unable to entertain it '. The interpretation to be put upon that section has been a matter of much discussion but this at least may be said that the interpretation must be a Wide one and the principle applicable is stated in a few words by their Lordships of the Privy Council in Srimati Nrityamony Dassi v. Lakhon Chunder Sen (1916) 30 M.L.J. 529' Limitation would without doubt remain in suspense whilst the plaintiffs were bona fide litigating for their rights in a Court of justice. ' In that case the then plaintiffs had been defendants in the previous litigation and had got a decree for possession of certain property. The Privy Council said that it would have been better if in those proceedings they had been turned from defendants into plaintiffs, but they still held that although they remained defendants, they were bona fide litigating their rights in Court of justice. I think the question for consideration by us is whether this plaintiff was in the previous litigation bona fide litigating his rights to be paid this money by the mosque represented by the present defendants. Once it is admitted that there was an issue and it must be admitted in this case-before the court, as to whether he was entitled to that money or not and the results of that issue might be either an order that he should recover the amount or even a declaratory order that he would be entitled to the amount, such declaratory order being a step towards getting payment, for instance, by exercising a lien that he might have over property or by proving the amount in a claim against either an insolvent estate or estate in the possession of the court through its Receiver, in my judgment, it is Impossible to say that he was not bona fide litigating his rights. In this case the fact is that he actually got an order that an officer of the court was to pay him the amount due and, in pursuit of that order, he had received a large sum on account from that officer of the Court the person then in possession of the assets out of which that payment should be made. Under these circumstances, in my judgment, during the whole period of that litigation he was bona fide litigating his rights and that period must be excluded from the period of limitation prescribed for this suit.

2. This appeal must accordingly be dismissed with costs of the 1st respondent.

Wallace, J.

3. I agree. That the plaintiff was prosecuting his claim for money due to him by the mosque seems to to be clear from the issues in O.S. No. 579 of 1910 and from the fact that under the decree in that suit he was paid by the receiver under the directions of the court a part of the sums due to him, and he might legitimately expect in the same manner to be paid the rest. Had the dicision of the District Munsif in O.S. No. 579 1910 been what that of the appellate court upon his decision was, then, on the issues in that case it could not have been held that the present claim was not being tried; and on the other hand, had the appellate court upheld the original court's decision and had the receiver proceeded to carry out the orders of the original court, there would have been no cause of action left for the present plaintiff to sue. It appears to me clear therefore that he was prosecuting his claim with due diligence and in good faith in another civil proceeding. Then as to whether the proceeding was founded upon the same cause of action, I do not think there can be any doubt, although the form in which the plaintiff got his relief in the District Munsif's court was framed in a declaratory form with a declaration that he had a charge for his money over the mosque property and with the direction already mentioned to the receiver appointed by the court to pay the amount found due to him. The, only other point is whether he was prosecuting his claim in a court which could not try it because of defect of jurisdiction, or other cause of a like nature. I think here again it is clear from the final decision in O.S. No. 579 1910 that the District Munsif's court and the appellate court from it were prevented from deciding upon the lawfulness of the present plaintiff's claim, because the plaintiffs in O.S. No. 579 of 1910 had not properly framed their action. That is a cause of a like nature with defect of jurisdiction. This is clearly a case in which the plaintiff has been honestly trying his best to get his case tried on the merits but has failed owing to the court being unable to give him such a trial.

4. I therefore, agree that Section 14 of the Limitation Act applies.


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