A. Alagiriswami, J.
1. The defendant is the appellant. The question that arises in this case is one of limitation. The defendant executed, the suit promissory note on 22nd July, 1955. The suit was filed originally in the Court of the District Munsif, Tuticorin on 22nd July, 1958, that is, on the last day of limitation . The defendant contended that Court had no jurisdiction to try the suit. Thereupon, the plaintiff endorsed on the back of the plaint that the plaint may be returned to him for presentation to the Court at Nagercoil where the defendant resides. As a result of the endorsement the plaint was returned on 6th August, 1959, and it was re-presented in the Court of the District Munsif, Nagercoil, on 19th August, 1959. The trial Court dismissed the suit holding that the suit was barred by limitation . The lower appellate Court has allowed the appeal and decreed the suit.
2. It is not disputed that the period during which the suit was pending in the District Munsif's Court, Tuticorin as well as the period, between the day when the District Munsif, Tuticorin, ordered the return of the plaint for presentation to the proper Court and 6th August, 1959, the day on which the plaint was taken return of by the plaintiff's Advocate is properly deductible for the purpose of computing the period of limitation. But it is contended that the period between 6th August, 1959 the day on which the plaintiff's Advocate took return of the plaint and 19th August, 1959 the day on which the plaint was re-presented to the District Munsiff's Court at Nagercoil, cannot be so deducted and that the plaintiff's suit is, therefore, barred by limitation. The Courts below have found that the promissory note was executed at Tuticorin and that means that the suit was properly instituted in the Court of District Munsif, Tuticorin, in the first instance.
3. On behalf of the respondent, the contention is that the return of the plaint for re-presentation to the District Munsif's Court. Nagercoil, was wrong and the suit should be deemed to be pending in the Tuticorin Munsif's Court till the plaint was re-presented to the Court at Nagercoil. This is a peculiar case where both the Courts have got jurisdiction to try the suit. But it is urged on behalf of the appellant that the order of the learned District Munsif of Tuticorin returning the plaint for presentation to the proper Court, even if wrong, is res judicata and the respondent cannot now raise the question that that order was wrong and that, therefore, the suit should be deemed to be pending in the District Munsif's Court, Tuticorin. The first point to note is that there was no decision as such by the District Munsif, Tuticorin, that he had no jurisdiction to try the suit. It was only on the plaintiff saying that the plaint may be returned to him for re-presentation to the Court of the District Munsif, Nagercoil, within whose jurisdiction the defendant resides, that the plaint was returned. Moreover we are not now deciding that the Court at Tuticorin had jurisdiction contrary to the earlier finding of that Court to the contrary for the purpose of deciding whether the decree has been passed by a Court having jurisdiction or not. It is only to enable us to decide whether the suit should be deemed pending in the Court of the District Munsif, Tuticorin that we have to decide whether that Court had jurisdiction to entertain the suit. There is no doubt that the Court of District Munsif, Tuticorin, did have the jurisdiction to entertain the suit. The wrong order of the learned District Munsif, Tuticorin returning the plaint, cannot, therefore, be res judicata even for the purpose of deciding the question of limitation. We cannot consider whether the Court of the District Munsif, Tuticorin had jurisdiction or not. On the very question of jurisdiction itself, possibly, the decision of the learned District Munsif, Tuticorin, may be res judicata. But for the purpose of deciding the question of limitation and for deciding the question that arises incidentally for the purpose of deciding the question of limitation, it cannot be said that the decision of the learned District Munsif, Tuticorin, is res judicata; nor can it be said that the plaintiff is estopped from contending that the Court of the District Munsif, Tuticorin, had jurisdiction. The parties cannot by consent confer jurisdiction on a Court which did not have jurisdiction. Ledgard v. Bull (1885) 13 I.A. 134. Similarly, parties cannot by consent take away the jurisdiction of a Court. It is open to them to agree that of two Courts having jurisdiction the suit should be instituted only in one of them. The present case can even be brought under that rule. It cannot, in any case, be said that, either because the plaintiff wanted the plaint to be returned to him for re-presentation to the proper Court or because of the order of the learned District Munsif of Tuticorin returning the plaint, consequent on that request, the plaintiff is debarred from contending that the Court of the District Munsif, Tuticorin, had jurisdiction, especially for deciding the question whether the suit is within time. Therefore, the decision of the Supreme Court in Mohanlal v. Benoy Kishana : 4SCR377 cannot apply to this case. There is no doubt as held in that case that even an erroneous decision on a question of law operates as res judicata between the parties to it and that the correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata. But here there was no decision on a question, of law. The decision in Chandrayya v. Seethanna : AIR1940Mad689 , is not relevant for the purpose of this case because there the suit was filed in the first instance in a Court which had no jurisdiction. The decision in Ramdutt V. E. D. Sassoon & Co. (1929) 56 M.L.J. 614 : 56 I.A. 128 : A.I.R. 1929 P.C. 103, that where a suit has been instituted in a Court which is found to have no jurisdiction and it is found necessary to raise a second suit in a Court of proper jurisdiction, the second suit cannot be regarded as a continuation of the first, even though the subject-matter and the parties to the suits were identical, does not apply to this case either. So also the decision in Seshagiri Row v. Velayudan Pillai (1913)22 M.L.J. 377 : I.L.R. 36 Mad. 482.
4. The lower appellate Court was undoubtedly right in relying upon the decision in Nandal v. Mt. Baratan : AIR1960Pat82 , In that case the suit was first instituted in the Court of the First Munsif. That Munsif ordered the return of the plaint on 21st April, 1952. The pleader for the plaintiff took return of it on 23rd April, 1953 and it was re-filed in the Court of the Second Munsif on 23rd April, 1953 itself. The only question that was decided in that case was that the gap of two days during which the plaint had remained in the custody of the lawyer for the plaintiff did not have the effect as if the suit which the plaintiff had originally filed in the Court of the First Munsif had terminated and a fresh suit had been filed when the plaint was presented in the other Court two days after its return. In the present case it is not disputed that the time taken, between the date of the order of the District Munsif of Tuticorin returning the plaint for re-presentation to the proper Court on 28th July, 1959 and 6th August, 1959 on which day the plaintiff's pleader took a return of it, is deductable for the purpose of computing the limitation. But in discussing this question the learned Judge held as follows:
But as I have already observed above, having regard to the position that in law the plaintiffs must be held to have rightly filed the plaint originally in the right Court which had full jurisdiction to try it, the plaintiffs cannot be prejudiced by any subsequent illegal order of the Munsif in returning the plaint for re-filing it in another Court. It is true that the plaintiffs did not raise any objection to this order of the learned Munsif and their lawyer actually received back the plaint and re-filed it, but these facts, in my opinion, cannot alter the position that the suit must be deemed to have been filed within time in the right Court. I also think that in the circumstances of the case it shall be deemed that the suit had remained pending throughout.
It is a well-known proposition of law that a wrong order of the Court cannot act to the prejudice of litigants. Therefore, the wrong order of the District Munsif, Tuticorin, returning the plaint for presentation to the proper Court cannot be held to prejudice the plaintiff in this case. The suit should be deemed to be pending throughout in the right Court whether it be the Court of the District Munsif, Tuticorin or the Court of the District Munsif, Nagercoil. The suit is not, therefore, barred by limitation. There are no merits in this Second Appeal and it is, accordingly, dismissed with costs.