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Ramakrishna Chettiar and anr. Vs. Jayarama Iyer and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1933Mad778
AppellantRamakrishna Chettiar and anr.
RespondentJayarama Iyer and ors.
Cases ReferredBrahmama v. Seethayya
Excerpt:
.....defendant 1, it is perfectly clear that he claimed no relief as against defendants 4 and 5 in that suit (defendants 1 and 2 in the present suit). his main defence, as stated above, was that the properties did not belong to the plaintiff' in that suit. if for any reason it is established that the plaint properties belong to the plaintiff and only minakshi ammal and ramakrishna chetti (defendants 4 and 5) removed the articles, having regard to the fact that the articles were entrusted to the plaintiff only for safe custody the plaintiff is entitled to relief only against these persons. 'the suit is bad for non-joinder of these parties,'and he says therefore that they should have been made parties. seethayya air 1927 mad 597 quoted for the appellants is a very strong case to show that where..........defendant 1, it is perfectly clear that he claimed no relief as against defendants 4 and 5 in that suit (defendants 1 and 2 in the present suit). his main defence, as stated above, was that the properties did not belong to the plaintiff' in that suit. then he went on to para. 7 of the written statement to say:if for any reason it is established that the plaint properties belong to the plaintiff and only minakshi ammal and ramakrishna chetti (defendants 4 and 5) removed the articles, having regard to the fact that the articles were entrusted to the plaintiff only for safe custody the plaintiff is entitled to relief only against these persons.2. he then goes on in para. 8 to say: 'the suit is bad for non-joinder of these parties,' and he says therefore that they should have been made.....
Judgment:

Walsh, J.

1. The defendants are the appellants. The question is whether the suit is time-barred, having regard to Section 14, Lim. Act. The persons, Aiyaswami and Venkatachala Chetti were carrying on a grocery business jointly. Aiyaswami died leaving a widow, defendant 2. Venkatachela Chetti left a son Lakshminarayana and between this son and defendant 2 there was a partition suit, O.S. No. 37 of 1919 in the Mayavaram Sub-Court. Before it was launched a creditor of Venkatachala Chetti brought a suit, O.S. No. 397 of 1918, in the Tiruvarur District Munsif's Court, got a decree and in execution of it attached some of the goods in the grocery shop. The Amin who took charge of the attached properties left them in the hands of the plaintiff who executed a surety bond that he would be responsible for the value of the goods. The decree was satisfied between October and December 1919. In the partition suit between the widow, (defendant 2) and Lakshminarayana the grocery goods went to the widow under a compromise. She assigned them to a transferee, another Lakshminarayana. He sought to recover the goods from the plaintiff and filed a suit against him. The plaintiff as defendant 1 in that suit raised two defences: (1) that the plaintiff Lakshminarayana did not own the goods but was only a benamidar; (2) that while ha (defendant 1) was in possession of the goods the present defendants trespassed and took them away. In that suit the trial Court found the plaintiff Lakshminarayana was not entitled to the goods and dismissed the suit. The appellate Court found he was entitled and gave a decree against defendant 1. It may be noted that defendant 1 in that suit, the present plaintiff, got the present defendants impleaded as defendants 4 and 5. The alleged trepass by them was on the 22nd or 23rd February 1920. The present suit was brought on 30th November 1925. It is admittedly out of time unless the time of the trial of the suit brought against the present plaintiff by Lakshminarayana is excluded. Both the lower Courts found that it should be excluded. I am, however, unable to agree with their view. Looking to the written statement of the plaintiff in that suit as defendant 1, it is perfectly clear that he claimed no relief as against defendants 4 and 5 in that suit (defendants 1 and 2 in the present suit). His main defence, as stated above, was that the properties did not belong to the plaintiff' in that suit. Then he went on to para. 7 of the written statement to say:

If for any reason it is established that the plaint properties belong to the plaintiff and only Minakshi Ammal and Ramakrishna Chetti (defendants 4 and 5) removed the articles, having regard to the fact that the articles were entrusted to the plaintiff only for safe custody the plaintiff is entitled to relief only against these persons.

2. He then goes on in para. 8 to say: 'The suit is bad for non-joinder of these parties,' and he says therefore that they should have been made parties. 'He claims no relief against them. It is argued that Section 14, Lim. Act, says nothing about the relief being the same, but only the cause of action being the same. It would be an extraordinary proposition to hold that where the same cause of action entitles a party to several reliefs and he chooses to sue only for one of them he can subsequently bring a suit for another relief and, so far as limitation is concerned, claim the benefit of Section 14, Lim. Act. In a recent case quoted for the appellants Narasimhacharyulu v. Appa Rao : AIR1933Mad197 , Sundaram Chetty, J., says with reference to Section 14:

Another aspect for consideration under that section is whether the previous proceeding was for the same relief although not founded on the same cause of action:

3. See also 1932 M.W.N. 1317 where two items in regard to which a claim was not raised in the previous partition suit were held to be time barred in the subsequent suit though both were partition suits, which is clear authority against the proposition that as long as the cause of action is the same the reliefs may be different. No authority has been quoted before me to show that the relief must not also be the same if Section 14, Lim. Act, is to apply. Then it is argued for the respondents that the 6th additional issue in O.S. No. 194 of 1922 on the file of the District Munsif's Court, Tiruvarur, covers the plaint. That issue ran: 'Whether the disputes among the defendants can be adjusted in this suit.' This is very vague, and to see what the disputes were we must look to the written statement. As I said, the plaintiff never raised any point in the written statement that defendants 4 and 5 were liable to him. He simply stated that if anybody was liable to the plaintiff in that case it was defendants 4 and 5 and not himself. In fact, as stated by the trial Court in the present case it was found in that case that 'no disputes arose between the defendants in that suit.' The District Munsif's finding on that issue is upon my findings of fact no disputes between the defendants in this suit arise.' No doubt he goes on to say:

But if there were such disputes it has not been shown why they could not be disposed in this suit itself.

4. The appellate Court in that suit said:

It is unnecessary to express, and I do not express, any opinion as to the rights and objections, if any, as between the plaintiff and defendants 4 and 5 in the matter of the 'samans' in question in this suit. I am cleat that defendant 1 has not made out any defence as against the plaintiff.

5. And in awarding costs he says:

Defendants 1 to 3 must also pay the costs of defendants 4 and 5 who have been brought on record on their objection in both Courts.

6. No doubt there are cases in which a party may be entitled to the benefit of Section 14, Lim. Act, although he is a defendant, but in none of the cases relied upon by the lower Courts or before me for the respondent-defendants has it been held that where he has not asked for the relief in the other suit or proceedings he can take advantage of this section. In Nrityamoni Dassi v. Lakhan Chandra Sen AIR 1916 PC 96 relief was asked for, and not only that but the defendants got an effective decree in their favour in the first Court and certainly the time during which that decree was in force could be deducted under Section 14, Lim. Act: See also Kunhikutti Ali v. Kunhammad AIR 1923 Mad 347, where the relief was directly asked for. Satyanarayan a Brahmama v. Seethayya AIR 1927 Mad 597 quoted for the appellants is a very strong case to show that where the party could have filed a suit for the relief he asks during the pendency of another connected suit or proceedings, he cannot avail himself of Section 14, Lim. Act. In that suit the maker of a promissory-note sued the payee for a mere declaration that the note had no consideration and was obtained by fraud and undue influence without suing for an injunction to restrain the payee from filing a suit on the note. Held that this did not suspend the running of time for the suit on the note by the payee, that the principle of dependant judgments is no longer good law and no equitable grounds for suspension of a cause of action can be added to the provisions of the Limitation Act. If an issue which was not actually raised could be held to arise by implication, so as to enable Section 14, Lim. Act, to be availed of in the subsequent suit, it would have been in a case of that sort, yet their Lordships say:

There was nothing in the present case to prevent the filing of the suit on 5th September 1921. It may be that the District Munsif would have dismissed the suit following his finding in the earlier case on the question of consideration and undue influence But, on appeal, it would have been reversed along with the other appeal and plaintiff would have got his decree, So long as there was no legal impediment to the filing of the suit earlier, no time can be excluded. Column 3, Article 73, operated.

7. That is a very much stronger case than the present case. As stated by the learned Judges, it is almost certain that if in that matter a suit had been filed in the first Court it would have been dismissed by the first Court on account of its finding in the earlier suit. The question as to whether money was due on the note was obviously much more nearly raised by implication than the liability of defendants 4 and 5 to defendant 1 in the present matter, where it can only be argued that because the present plaintiff pleaded that cot he but defendants 4 and 5 are liable, if any persons were, to the plaintiff in that suit, therefore he raised the question that they were liable to himself. In my opinion it is quite clear that the plaintiff's cause of action which arose on 22nd or 23rd February 1920 subsisted throughout the course of the suit brought against him, O.S. No. 194 of 1922, and that his right to recover from the present defendants was not put in issue in that suit and the present suit is in my opinion clearly time-barred. It may be noted that even if for any reason it should be held that the plaintiff was entitled to deduct the period between the decree in the trial Court dated 26th November 1923 and that in the appellate Court dated 14th July 1925, about 2 months, the suit would still be out of t(SIC)e. In the result the appeal must be allowed with costs throughout and the suit dismissed.


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