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Moneys Transports, Tiruchirapalli Vs. the Tanjore Co-operative Marketing Federation Ltd. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Case NumberAppeal No. 582 of 1974
Judge
Reported inAIR1979Mad196
ActsCode of Civil Procedure (CPC), 1908 - Order 7, Rule 10, 10(1) and 10(A)
AppellantMoneys Transports, Tiruchirapalli
RespondentThe Tanjore Co-operative Marketing Federation Ltd.
Cases ReferredAbdul Latif Mohideen v. Md. Labbai
Excerpt:
.....the actual endorsement made by the learned district judge-trainee (fourth additional subordinate judge tiruchirapalli dated 23-9-1971. by order dt. if the learned subordinate judge, nagapattinam, had simply followed the ordinary rule laid down in this behalf by this court as well as the higher court and the rules of prudence that in appealable cases he should give a finding on all the points in controversy, so that in the event of the appellate court not agreeing with the trial judge, on his conclusion of the preliminary point, time can be saved by the appellate court, without remanding the suit for fresh disposal, by considering the findings of the trial judge on the other issues in the suit. while deciding this question and simply accepting the contention of the respondent, the..........the actual endorsement made by the learned district judge-trainee (fourth additional subordinate judge tiruchirapalli dated 23-9-1971. by order dt. 23-9-1971, the learned district judge-trainee (fourth additional subordinate judge) tiruchirapalli, ordered the return of the plaint, and that date does not mean that the plaint was returned that day itself. the order of the learned judge will have to be fair copied and signed, and, thereafter the office will have to obtain the signature of the learned judge on the endorsement before the plaint can be returned to the party actually. the endorsement which we have extracted would show that the office originally intended to obtain the signature of the learned judge on 4-10-1971, and that is why the date of the actual return was typed as.....
Judgment:

Ismail, J.

1. This is an appeal preferred by the plaintiff in OS No. 65 of 1972 on the file of the Court of the Subordinate Judge, Nagapattinam, dismissing the suit solely on the ground that the same was barred by limitation. The suit was filed by the appellant against the respondent for recovery of a sum of Rs. 24,140/-, with interest. The suit was originally instituted before the learned Subordinate Judge, Tiruchirapalli, on 3-10-1970. There is no dispute that the suit so instituted was within time. The respondent herein took up the plea that the Sub Court, Tiruchirapalli, had no jurisdiction to entertain the suit, and that the competent court to entertain and dispose of the suit was the Sub Court, Nagapattinam. The question whether the Sub Court, Tiruchirapalli, had jurisdiction or not, was tried as a preliminary issue, and the learned district Judge-Trainee functioning as the Fourth Additional Subordinate Judge, Tiruchirapalli, by an order dated 23rd Sep., 1971, held that the Sub Court, Tiruchirapalli, had no jurisdiction to entertain and dispose of the suit, and the competent court to entertain and dispose of the suit was the Sub Court, Nagapattinam, and ordered the return of the plaint for presentation to the proper court. The learned Judge has actually made the endorsement on the plaint only on 13th Oct., 1971, nothing that the plaint was actually returned on 13th Oct., 1971. On the very next day, viz., 14th Oct., 1971, the plaint was presented before the Sub Court at Nagapattinam. Before the Sub Court of Nagapattinam the respondent herein took up the plea that the suit was barred by limitation and that plea was the subject-matter of the 11th issue for trial. In fact, it would appear that the respondent requested the Court to try this issue as a preliminary issue. The learned Subordinate Judge, Nagapattinam, having tried the issue as a preliminary issue, by judgment and decree dated 30th April, 1973, accepted the plea of the respondent that the suit was barred by limitation and dismissed the suit. It is against this dismissal of the suit, the present appeal has been filed by the plaintiff in the suit.

2. As we have pointed out already, the suit has been dismissed only on the ground of limitation, and, therefore, we have to consider this appeal only on the question whether the suit was barred by limitation or not. For the purpose of considering this point, we have to find out what was the case put forward by the respondent before the learned Subordinate Judge, Nagapattinam, as regards his plea that the suit was barred by limitation. As we have pointed out already, there is no dispute that the suit as originally instituted in the Sub Court, Tiruchirapalli, was not barred by limitation, and, therefore, the plea of limitation put forward by the respondent herein must have reference to something that happened subsequently. In other words, the plea of the respondent was that the plaint having been ordered to be returned by the learned District Judge-Trainee functions as the Fourth Additional Subordinate Judge, Tiruchirapalli, by order dated 23rd Sep., 1971, the appellant herein should have taken return of the plaint immediately and presented the same before the Sub Court, Nagapattinam, and ought not to have waited for 20 days and taken return of the plaint on 13th Oct., 1971 and presented the same before the Sub Court, Nagapattinam on 14th Oct., 1971. It is this interval of 20 days between the order directing the return of the plaint made by the learned District Judge Trainee (Fourth Additional Subordinate Judge), Tiruchirapalli, and the actual taking return of the plaint on 13th Oct., 1971, that was alleged to have constituted the delay in the presentation of the plaint to the proper court, and, therefore, affected the period of limitation. Para. 11 of the order of the learned District Judge Trainee (Fourth Additional Subordinate Judge) Tiruchirapalli, states as follows:--

'In the result, this court has no jurisdiction to entertain the suit. The plea is ordered to be returned for presentation to the proper court having jurisdiction.' We emphasise the words 'the plaint is ordered to be returned' contained in the order of the learned District Judge Trainee (Fourth Additional Subordinate Judge), Tiruchirapalli, dated 23rd Sept., 1971. The plaint itself contains the following endorsement signed by the learned District Judge-Trainee (Fourth Additional Subordinate Judge), Tiruchirapalli, on 13th Oct., 1971--

'In the Court of the Subordinate Judge, Tiruchirapalli O.S. No. 477 of 1970.

Name of the plaintiff: Name of the defendant: Date of presentation of the plaint: Date of order of return: Date of actual return Reasons for return:- Messrs., Moneys Transports, Tiruchi by its partner Mrs. Prabavathi Kunjithapadam. The Tanjore Co-operative marketing Federation Ltd., vijayapuram, Tiruvarur 3-10-1970 23-9-1971 13-10-1971. Vide judgment attached, Sd. P. Bhaskaran, District Judge-Trainee (IV Additional Sub Judge) 13-10-1971.'

The endorsement shows that the date of the actual return was originally typed as '4-10-1971,' but the same was scored out and altered to '13-10-1971' in the hand of the learned District Judge Trainee (Fourth Additional Subordinate Judge) Tiruchirapalli, who signed the endorsement on 13-10-1971. On the very next day, the plaint was presented to the Sub Court, Nagapattinam. There is no controversy about all these facts. By accepting the plea of the respondent that the appellant should have taken return of the plaint immediately and presented the same to the Sub Court of Nagapattinam, on the very next day after the order of the learned District Judge-Trainee (Fourth Additional Subordinate Judge), Tiruchirapalli i.e. 24-9-1971, the learned Subordinate Judge of Nagapattinam, committed a grievous error in ignoring the statutory requirements of O. 7, R. 10, C.P. Code, as well as the actual endorsement made by the learned District Judge-Trainee (Fourth Additional Subordinate Judge Tiruchirapalli dated 23-9-1971. By order dt. 23-9-1971, the learned District Judge-Trainee (Fourth Additional Subordinate Judge) Tiruchirapalli, ordered the return of the plaint, and that date does not mean that the plaint was returned that day itself. The order of the learned Judge will have to be fair copied and signed, and, thereafter the office will have to obtain the signature of the learned Judge on the endorsement before the plaint can be returned to the party actually. The endorsement which we have extracted would show that the office originally intended to obtain the signature of the learned judge on 4-10-1971, and that is why the date of the actual return was typed as 4-10-1971, but for some reason or other, the endorsement was placed for the signature of the learned judge only on 13-10-1971, and the learned judge while signing the endorsement on 13-10-1971, very rightly scored out the typed date '4-10-1971' and put the date as '13-10-1971'. By no stretch of imagination the appellant can be held responsible for the district Judge-Trainee (Fourth Additional Subordinate Judge) Tiruchirapalli, signing the endorsement on 13-10-1971. He had no means and no power to compel or force the learned Judge to sign the endorsement either on 23-9-1971, itself for immediately thereafter. Therefore, the appellant herein cannot be blamed for something which the office of the court and the presiding Officer of the court had to do.

3. As we have pointed out already, there is a difference between the court, by a judicial pronouncement, ordering the return of the plaint for presentation to the office of the court administratively actually returning the plaint to the party. The learned Subordinate Judge, Nagapattinam, in the present case, has betrayed a total and complete ignorance of this difference when he accepted the plea of the respondent that the appellant herein should have taken delivery of the plaint then and there, i.e., on 23-9-1971, or immediately thereafter and presented the same to the proper court immediately. It is not clear what exactly the learned Subordinate Judge, Nagapattinam meant when he observed that the appellant should have taken return of the plaint on 23-9-1971 itself, whether the appellant should have snatched the plaint from the hands of the Judge or from the hands of the Officers who had the custody of the plaint without the proper procedure laid down in this behalf being followed. It is ad nauseam the learned Subordinate Judge, Nagapattinam, in his judgment goes on repeating that the plaintiff should have taken return of the plaint immediately on 23-9-1971, itself and presented the plaint to the proper court, viz., Sub Court, Nagapattinam, and had not been diligent.

4. We may also draw attention to the statutory requirements in this behalf. Rule 10 of O. 7 Civil P.C. deals with the return of plaint. Sub-rule (1) of R. 10 says:--

'Subject to the provisions of R. 10-A, 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.'

Sub-rule (2) of R. 10 states--

'On returning a plaint the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, ad a brief statement of the reasons for returning it.'

This is a mandatory statutory requirement for the purpose of showing when the plaint was presented in the original court when it was ordered to be returned, when it was actually returned, and what was the ground on which it was directed to be returned. These requirements in the forms of an endorsement on the plaint signed by the Judge himself are absolutely necessary for the purpose of avoiding any controversy before the court to which the plaint was presented subsequently on these particulars. Without this endorsement having been made on the plaint, the plaint cannot be returned to a party, and the plaint cannot be presented to the proper court. The learned Subordinate Judge of Nagapattinam, in the present case, has completely lost sight of this requirement of the law when he went on repeating ad nauseam that the appellant should have taken return of the plaint on 23-9-1971. The learned Subordinate Judge Nagapattinam proceeded as if the plaint was actually available for being taken return of on 23-9-1971, and because of the default or laches on the part of the appellant, it was not taken return of on that day, and it was taken return of only on 13-10-1971. On the other hand, as we have shown above, the plaint was available for being taken return of only on 13-10-1971, when the learned Judge made the endorsement as required by R. 10(2) of O. 7, C.P.C., and by no stretch of imagination the appellant could have taken return of the plaint prior to 13-10-1971.

5. In view of this conclusion of ours, we have no alternative but to set aside the judgment of the learned Subordinate Judge, Nagapattinam, and direct him to dispose of the suit on merits. It is unfortunate that the suit instituted on 3-10-1970 yet remains undisposed of and has to be tried hereafter. If the learned Subordinate Judge, Nagapattinam, had simply followed the ordinary rule laid down in this behalf by this court as well as the higher Court and the rules of prudence that in appealable cases he should give a finding on all the points in controversy, so that in the event of the appellate court not agreeing with the trial Judge, on his conclusion of the preliminary point, time can be saved by the appellate court, without remanding the suit for fresh disposal, by considering the findings of the trial Judge on the other issues in the suit. In this connection, we may draw attention to an observation made by this court in Abdul Latif Mohideen v. Md. Labbai, : AIR1950Mad596 . In that case, this court pointed out (at p. 598 of AIR):--

'It has often been observed by this court and by the Judicial Committee that in appealable cases, subordinate courts should as far as possible, receive the evidence adduced and decide all the issues in order to avoid a piecemeal trial and a protracted litigation in the shape of an appeal and remand in case the decision of the subordinate court on preliminary issues is not upheld by the appellate court.'

This salutary requirement has been completely ignored by the learned Subordinate Judge, necessitating a protracted litigation which is pending for a very long time.

6. In addition to all these infirmities, the judgment of the learned Subordinate Judge, Nagapattinam, is very unsatisfactory in form also. As we pointed out already, the point raised before him and considered by him was a simple one, viz. whether the suit was in time when filed before the Sub Curt, Tiruchirapalli, whether it became barred by limitation in view of the contention put forward by the respondent that the plaintiff should have taken return of the plaint on 23-9-1971, but has take return of it only on 13-10-1971, and presented it to the Sub Court, Nagapattinam on 14-10-1971, and the interval between 23-9-1971 and 13-10-1971 affected the suit being in time. While deciding this question and simply accepting the contention of the respondent, the learned Subordinate Judge of Nagapattinam, has written more than two pages of printed judgment, repeating ad nauseam the same simple contention as well as his view.

7. In these circumstances, the appeal is allowed, the judgment and decree are set aside and the suit is remanded to the learned Subordinate Judge, Nagapattinam, for disposal on merits. The appellant will be entitled to the costs of this appeal. Court fee paid on the memorandum of appeal will be refunded to the appellant. In view of the fact that the suit is a very old one, the learned Subordinate Judge, Nagapattinam, is directed to dispose of the suit as expeditiously as possible.

8. Appeal allowed.


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