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Palanivel Pillai Vs. Santharam Iyer and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1984)2MLJ109
AppellantPalanivel Pillai
RespondentSantharam Iyer and anr.
Cases ReferredGurdit Singh v. Mowsha Singh.
Excerpt:
- .....between exhibits a-1 and b-l. the suit promissory note is dated 26th july, 1969, whereas the note exhibit b-1 is dated 27th july, 1969. therefore, it is wholly improbable that the defendants after having received the amount and executed the promissory note on 26th july, 1969, itself, would have pledge their jewels on the next day. realising this difficulty it was for the first time in the evidence stated that the first defendant alone had signed in the promissory note on 26th july, 1969, and that the plaintiff and another person came to the house of the defendants on the next day to get the signature of the first defendant's wife, the second defendant, and that the first defendant later on gave the jewels and received the money from the plaintiff. but these things have not at all.....
Judgment:

S. Nainar Sundaram, J.

1. In this second appeal, the defendant in O.S. No. 290 of 1976 on the file of the District Munsif, Mayuram, is the appellant. The respondents herein are the plaintiffs in the suit. The plaintiffs laid the suit for recovery of two items of gold jewels or their value, under the following circumstances. There was a borrowing of a sum of Rs. 2,000 by the plaintiffs from the defendant on a promissory note dated 26th July, 1969. The defendant laid the suit O.S. No. 51 of 1972 on the file of the District Munsif, Mayuram, for recovery of the amount due under the promissory note marked in that case as Exhibit A-l, against the plaintiffs herein. The plaintiffs herein, who were the defendants in O.S. No. 51 of 1972, not only raised various contentions but also pleaded that the two items of gold jewels were pledged by them with the defendant as could be seen from a chit dated 27th July, 1969, marked in that case as Exhibit B-1 and that he was bound to return the jewels on the discharge of the suit promiss or note debt. We are here concerned only with this claim of the defendants in the earlier suit. This suit, O.S. No. 51 of 1972 was decided on 26th March, 1973, and the District Munsif, Mayuram, accepted the case of the plaintiffs herein, the defendants in that suit, with reference to their plea that the pledge of the jewels was to secure the promissory note debt, but however, negatived the other pleas of She plaintiffs herein, the defendants in that suit, and granted a decree in favour of the defendants herein, the plaintiff in that suit as prayed for and also directed him to return the jewels on the discharge of the suit claim. The defendant herein, the plaintiff in that suit, did not accept this direction and he appealed and the appeal, A.S. No. 153 of 1974 was heard and decided by the Subordinate Judge of Mayuram on 4th December, 1975. There will be occasion to refer to in detail the import of the judgment in that appeal subsequently, but suffice it to point out at this juncture that the decree in O.S. No. 51 of 1972, in so far as it directed the return of the jewels, was set aside. Pleading that the cause of action for the present suit for recovery of the two items of gold jewels arose on 24th December, 1975, the date of the judgment in A.S. No. 153 of 1974, the present suit had come to be filed.

2. The defendant contested the present suit, denying the entrustment of the gold jewels as well as putting forth a plea that the suit claim is barred by time. The District Munsif, Mayuram, countenanced the case of the defendant, both on the question of entrustment of the gold jewels as well as the bar of limitation and as a result, toe suit of the plaintiffs was dismissed, but without costs. The plaintiffs appealed and the appeal, A.S. No. 82 of 1977 was heard and disposed of by the Subordinate Judge, Mayuram, and he has chosen to take different views on both the questions relating to entrustment and the bar of limitation. The Subordinate Judge, Mayuram, on the question of limitation relied on the pronouncement in Venkataramana Iyengar v. Rangaswami Naidu : (1968)2MLJ8 . As a result, the Subordinate Judge, Mayuram, set aside the judgment and decree of the first Court and granted a decree in favour of the plaintiffs with costs throughout. This second appeal is directed against the judgment and decree of the lower appellate Court.

3. At the time of admission of this second appeal, the following substantial question of law was mooted out for consideration:

Whether the suit is barred by limitation and whether the lower appellate Court has properly applied the principle adumbrated in G V. Venkaramana Iyengar Dharmasthapanam Coimbatore, by Managing Trustee Dr. C.A. Vijayaraghavan v. P.N. Rangaswami Naidu : (1968)2MLJ8 .

4. Mr. B. Kumar, learned Counsel for the defendant, the appellant in this second appeal, would contend that the ratio in Venkataramana Iyengar v. Rangaswami Naidu : (1968)2MLJ8 , cannot be invoked on the facts of the present case. In the decision referred to above, Alagiriswami, J., as he then was, dealt with a case where the earlier suit for recovery of mesne profits on the ground of forfeiture of lease, though decreed by the first Court, was dismissed on appeal, as premature. The question arose as to whether for the subsequent suit for rents a new period of limitation should be calculated from the date on which the earlier decree was set aside on appeal. The learned Judge, on the facts of that case, held that it should be so calculated. Mr. B. Kumar does not strictly express a grievance over the principle countenanced in that decision on the facts of that case, but only submits that the said principle countenanced by the learned Judge in that case could not govern the facts of the present case.

5. In Venkataramana Iyengar v. Rangaswami Naidu : (1968)2MLJ8 the plaintiff did, before the first Court, have the benefit of a decree. However, on appeal, it was found that the suit was premature. Obviously, the cause of action for the relief had not arisen at the time when the suit was filed earlier and it ought to have arisen only subsequently and the plaintiff had no necessity to resort to this cause of action because of the decree in his favour and the plaintiff bad obtained the relief which he wanted in the suit and, as pointed out by the learned Judge, it would be unrealistic and unreasonable to expect him to file another suit for the same relief when he had a decree in his favour for it. That decree was set aside only in appeal. In these circumstances, the learned Judge countenanced the principle that the cause of action stood suspended while the decree of the first Court arrived and that cause of action got revived when the decree of the first Court was set aside on appeal. The learned Judge observed that on the dismissal of the earlier suit, the cause of action which had merged in the decree in the earlier suit revived and a fresh cause of action arose on the day on which the earlier suit was dismissed on appeal. The learned Judge took note of earlier pronouncements where similar contingencies arose and the principle of exclusion of the period during which the plaintiff was litigating for his rights and the time spent in such litigation was countenanced. the facts of the case dealt with by the learned Judge are not at all in pari materia with the facts of the present case. The cause of action for the plaintiffs in the present suit was the entrustment of the jewels with the defendant and there was only one entrustment and it had already arisen when the earlier suit was filed and in any event, as we will see presently, the earlier suit was not dismissed on the ground that it was premature Hence, if at all the plaintiffs in the present suit would get over the bar of limitation, they could do so only by invoking the aid of Section 14(1) of the Limitation Act, 1963, hereinafter referred to as the Act. Section 14(1) of the Act reads as follows:

In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due dilligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue 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.

There cannot be any dispute over the position that the plaintiffs could fall back only upon Section 14(1) of the Act to survive and get over the bar of limitation.

6. As a first ground, learned Counsel for the defendant. the appellant herein, urged that for application under Section 14(1) of the Act, the earlier proceedings must have been 'prosecuted' as such by the plaintiffs in the present suit, the defendants in the earlier suit, and he would draw a distinction by pointing out that the plaintiffs in the present suit were only defendants in the earlier suit and hence, it cannot be stated that the plaintiffs in the present suit were prosecuting another civil proceeding earlier. It is true that the language used in Section 14(1) of the Act speaks about prosecuting another civil proceeding earlier. But, this set of expressions has received a wider connotation and judicial precedents have recognised that it would suffice the purpose if there had beeu 'litigating for rights' in the appropriate Court and the character, which the plaintiff in the later suit ought to have filled in the earlier suit, need not always be that of the plaintiff. It will be appropriate if we advert to the following passage occurring in the judgment Agha Kunju v. Krishna Kurup A.I.R. 1954 T.C. 237..But it has to be stated that the question whether a party was really prosecuting a civil proceeding as contemplated by Section 14 of the Limitation Act cannot always be determined merely on the basis of the position accepted by him in that proceeding. Under certain circumstances a defendant or a respondent in such a proceeding could also be deemed to have been prosecuting that proceeding. Where he has merely been resisting or defending a proceeding initiated by the plaintiff or the applicant it is clear that such resistance or defence would not amount to a prosecution of a proceeding. But where the defendant or respondent has put forward his own claims in such a proceeding and has sought reliefs in respect of such claims in the very same proceeding it can certainly be said that he has been prosecuting a civil proceeding.

The above decision succinctly brings out the legal position. So far as OS. No. 51 of 1972, is concerned, it is found from Exhibit B-l, copy of the written statement filed by the plaintiffs herein, the defendants in that suit, that they had put forth a plea that there was a pledge of the two items of gold jewels for the suit promissory note and they agitated for the relief of return of the two items of gold jewels on the discharge of the suit promissory note debt. A printed copy of the judgment in that suit has been marked as Exhibit A-2 in the present suit. I find that there was, in fact, an issue, issue No. 2, with reference to this agitation for the return of the two items of gold jewels. Hence, for the purpose of Section 14(1) of the Act, it has to be taken that the plaintiffs in the present suit, the defendants in the earlier suit, were in fact 'prosecuting another civil proceeding' when they litigated for their rights with reference to the return of the two items of gold jewels.

7. The second point urged by Mr. B. Kumar learned Counsel for the defendant, the appellant herein, is that the earlier suit must have failed on account of defect of jurisdiction or other cause of a like nature and such is not the case here. In support of this submission, learned Counsel relies on the pronouncement of the Supreme Court in Gurdit Singh v. Mowsha Singh : [1977]2SCR250 : (1977) On an analysis of the principle countenanced not only in the pronouncement of the Supreme Court but as well as in an earlier pronouncement, I am inclined to sustain this ground urged by the learned Counsel. In Gurdit Singh v. Mowsha Singh : [1977]2SCR250 , it was pointed out that one of the three important conditions to be satisfied before Section 14(1) of the Limitation Act, 1908 can be pressed into service is, 'the former proceeding must have been prosecuted in good faith in a court which from defect of jurisdiction or other cause of a like nature was unable to entertain 'it' and the second submission of the learned Counsel is practically based upon this ingredient countenanced by the Supreme Court. The Supreme Court laid down the ratio in the following terms.

Now the words 'or other cause of a like nature' which follow the words 'defect of jurisdiction' in the above quoted provision are very important. Their scope has to be determined according to the rule of ejusdem generis. According to that rule, they take their colour from the preceding words 'defect of jurisdiction' which means that the defect must have been on an analogous character barring the Court from entertaining the previous suit.

8. Keeping in mind the above ratio, it has become necessary to find out as to whether denial of relief claimed by the plaintiffs herein, the defendants in the earlier suit, by the court was on the ground that it was unable to entertain the same on account of any 'defect of jurisdiction' or on account of any defect of an analogous nature. In Roshanlal v. R.B. Mohan Singh Mberai : [1975]2SCR491 it has been laid down..Any circumstance legal or factual, which inhibits entertainment or consideration by the court of the dispute on the merits, comes within the scope of the section...

It was countenanced that the obstacle must be jurisdictional or defects more or less neighbours of jurisdictional deficiencies.

9. At this juncture, it must be pointed out that in the present case, there is a total lack of plea that the plaintiffs could avail of the exclusion of the concerned period under Section 14(1) of the Act, setting forth the grounds therefor. But, I am not inclined to put this solely against the plaintiffs in the present suit, the defendants in the earlier suit, since facts have come to be disclosed in the course of the trial of the case and hence, this court should examine as to whether the relief for the return of the two items of gold jewels asked for by the plaintiffs herein, the defendants in the earlier suit, was negatived by the appellate court on account of any defect of jurisdiction or other cause of a like nature, which alone could come to the rescue of the plaintiffs herein to get over the bar of limitation. Only when it is demonstrated that the prior civil proceeding could not fructify on account of any recognised ground of defect of jurisdiction or other cause of a like nature, Section 14(1) of the Act can be invoked. It would not suffice the purpose to show that there were prior civil proceedings and they went against the plaintiff. If it is found that the earlier proceedings terminated on other grounds, which could not come within the set of expressions 'defect of jurisdiction or other cause of a like nature', the benefit of Section 14(1) of the Act could not be availed of. If there had been a dismissal of the earlier proceeding on merits or on the ground that the action was misconceived, Section 14(1) of the Act will stand excluded. The certified copy of the judgment in appeal, A.S. No. 153 of 1974 has been exhibited in the present case as Exhibit A-3. The reason expressed by the appellate court for negativing the relief asked for by the plaintiffs herein, the defendants in the earlier suit, for the return of the two items of gold jewels are found in paragraph 7 of the judgment and it is better that they stand extracted as follows:

Exhibit B-1 is a piece of paper in which it has been written as follows:

On the top of Exhibit B-l, we find the date as 27th July, 1969. Admittedly, it has been signed by the plaintiff. The contention of the defendants is that two Items of gold jewels weighing 75 grams were pledged by them to the plaintiff as a security for the suit transaction. But, according to the plaintiff, the defendants wanted to weigh the jewels and therefore, after weighing the jewels, he (the plaintiff) noted the weight in Exhibit B-1 and gave it to the defendants. The plaintiff therefore contends that he did not receive these jewels as a pledge for securing the suit transaction. In support of the plaintiff's contention, the learned Counsel for the plaintiff points out the fact that the suit promissory note is dated 26th July, 1969 while Exhibit B-1 is dated 27th July, 1969. Therefore, he contends that it is improbable that after having received the money on 26th July, 1969 and executed a promissory note, the defendants would have given their jewels as a pledge and that too, without a proper pledge receipt. He also contends that there is nothing in Exhibit B-1 to show that the plaintiff had received these jewels as a pledge or that it has any connection whatsoever with the suit promissory note. He also contends that the usual contents of the pledge receipt namely, the name of the person pledging it, the value of the goods and the amounts secured, are all not found in Exhibit B-1 and that the mere note on a bit of paper has been taken advantage of by defendants to defeat the claim of the plaintiff under the suit promissory note. I agree with the learned Counsel for the plaintiff in this respect and I am of opinion that there is no connection between Exhibits A-1 and B-l. The suit promissory note is dated 26th July, 1969, whereas the note Exhibit B-1 is dated 27th July, 1969. Therefore, it is wholly improbable that the defendants after having received the amount and executed the promissory note on 26th July, 1969, itself, would have pledge their jewels on the next day. Realising this difficulty it was for the first time in the evidence stated that the first defendant alone had signed in the promissory note on 26th July, 1969, and that the plaintiff and another person came to the house of the defendants on the next day to get the signature of the first defendant's wife, the second defendant, and that the first defendant later on gave the jewels and received the money from the plaintiff. But these things have not at all been mentioned in the written statement or in the reply notice. If really the contention of the defendants is true and if, they had received the money only on 27th July, 1969, on the pledge of these articles, the defendants would have specifically stated in their reply notice as well as in the written statement that the money was not paid on 26th July, 1969, but was paid only on 27th July, 1969, and that the second defendant had not signed the promissory note on 26th July, 1969. There is no such allegation either in the written statement or in the reply notice. Therefore it is clear that there cannot be any connection between Exhibit A-1 and Exhibit B-l, they are different, this explanation is given by the first defendant on after-thought as it will be apparent that there cannot be any connection between these two. Secondly there is nothing in Exhibit B-1 to show that these articles were received as a pledge in respect of the suit transaction. Therefore, in these circumstances, I am of opinion that the defendants have not established that the articles mentioned in Exhibit B-1 were received by the plaintiff as a pledge in respect of the suit promissory note. Therefore, once that is clear, the defendants will not in this suit be entitled to make a claim for the return of the jewels mentioned in Exhibit A-1 and if the plaintiff had received the jewels under Exhibit B-1 as contended by the defendants and that too, without paying the requisite court-fee the same will be in the nature of a counter-claim. Therefore, the defendants will have to establish that claim that the plaintiff received the jewels under Exhibit B-1 in a properly instituted suit and cannot agitate that question in this suit. Therefore, I find under this point that since the defendants have not established that the jewels mentioned in Exhibit B-1 were pledged in respect of the suit promissory note, the plaintiff cannot be directed to return the jewels as contended by the defendants. A bare reading of the above reasonings clearly makes out that the said relief for the return of the jewels was negatived on the ground that there was non-substantiation of the case that they were pledged in respect of the suit promissory note and that they have got. to be returned on the discharge of the suit promissory note debt, as claimed in that suit. It will be far fetched to state that there was a denial of the relief asked for in that suit by the defendants therein, the plaintiffs in the present suit, on the ground of defect of jurisdiction or other cause of like nature. There was a categoric finding on facts that the two items of gold jewels were not the subject-matter of pledge to secure the amounts advanced under the suit promissory note and hence, there could not be the relief of return of the said jewels on the discharge of the suit promissory note debt. Certainly, the obstacle was not jurisdictional. If this position is appreciated, then, it is not possible to subscribe any support to the plaintiffs in the present suit to get over the bar of limitation by invoking the aid of Section 14(1) of the Act.

10. Mr. B. Kumar, learned Counsel for the defendant, the appellant herein, would like to put another hurdle for the plaintiffs to have the aid of Section 14(1) of the Act and this is the third limb of the submissions made by Mr. B. Kumar. That is the earlier proceedings and the later proceedings must be based on the same cause of action. For this submission, learned Counsel draws support from the decision of the Supreme Court in Gurdit Singh v. Mowsha Singh. : [1977]2SCR250 That decision was rendered under Section 14(1) of the Limitation Act, 1908. Certain changes have been brought forth in the language of Section 14(1) of the Act. For the words 'where the proceeding is founded upon the same cause of action', found in Section 14(1) of the Limitation Act, 1908, the words 'where the proceeding relates to the same matter in issue' have been substituted in Section 14(1) of the Act. Thus, it could be stated that the identity of the matter in issue, and not the cause of action, or reliefs should be the test for the applicability of Section 14(1) of the Act. It is not necessary to dwell any further on this contention since I have upheld the second ground urged by the learned Counsel for the defendant, the appellant herein.

11. It was also contended by Mr. B. Kumar, learned Counsel for the defendant, the appellant herein, that here is a lack of good faith, Here again, there is no need to explore this question for the simple reason, the second ground advanced by the learned Counsel which is substantial indeed, has been sustained by me and that is sufficient to come in the way of the plaintiffs invoking the aid of Section 14(1) of the Act, to get over the bar of limitation.

12. For the reasons expressed above, this second appeal is allowed, the judgment and decree of the lower appellate Court are set aside and those of the first court are restored; and the suit of the plaintiffs will stand dismissed. In the peculiar circumstances of the case, I direct the parties to bear their respective costs throughout.


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