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Bonomali Gope Vs. Fakir Chand Pal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1928Cal46
AppellantBonomali Gope
RespondentFakir Chand Pal and ors.
Cases ReferredLakshiram Mandal v. Sonatan Basar
Excerpt:
- .....not time-barred, and decreed the suit in part.2. two points are taken by the learned vakil for the opposite party. the first is that the period between the 2nd may 1926 and 6th june 1926 should be deducted from the period of limitation upon the ground that during that period the petitioner was prosecuting in good faith a suit to recover the subject-matter of the present suit in the union court in bihar which court from defect of jurisdiction or through causes of a like nature was unable to entertain it. it was the common case of the petitioner and the opposite party that in law and in fact the union court of bahar had jurisdiction to entertain the suit. but the learned vakil for the opposite party contended, having regard to orders passed by the union court, that the opposite party.....
Judgment:

Page, J.

1. This is an application under Section 25, Provincial Small Causes Courts Act, to revise a decree passed by the learned Munsiff of the Small Cause Court at Munshigunge. The suit was brought to recover money lent upon interest which was repayable on demand. The money was lent on the 2nd, 3rd, 4th. 5th and 6th May 1923. On the 14th June 1926 the plaintiff filed the present suit. Prima facie his cause of action is time-barred. The learned Munsif, however, held that the claim was not time-barred, and decreed the suit in part.

2. Two points are taken by the learned vakil for the opposite party. The first is that the period between the 2nd May 1926 and 6th June 1926 should be deducted from the period of limitation upon the ground that during that period the petitioner was prosecuting in good faith a suit to recover the subject-matter of the present suit in the Union Court in Bihar which Court from defect of jurisdiction or through causes of a like nature was unable to entertain it. It was the common case of the petitioner and the opposite party that in law and in fact the Union Court of Bahar had jurisdiction to entertain the suit. But the learned vakil for the opposite party contended, having regard to orders passed by the Union Court, that the opposite party should be given the benefit of Section 14, Limitation Act, upon the ground that his failure to prosecute the suit in the Small Cause Court was due not to lack of diligence on his part but to the act of the Union Court. When the suit came on for the hearing before Union Court that Court passed the following order:

It being desirable that there should be a proper trial conducted by persons versed in law of the question regarding the document filed by the plaintiffs and regarding the question of the rate of interest, this Court orders that the suit be conducted in the proper Court.

3. I am unable to accede to this contention. The opposite party was guilty of considerable and unreasonable delay in taking steps to recover the debt due to him. He waited until the 2nd May 1926 (within two or three days of the expiration of the three years' period of limitation) before he filed his suit in the Union Court. If he had filed his suit with due diligence in the Union Court there would be ample time after the Union Court had considered the matter for him to have presented his suit in the Court of Small Causes, within time. Further, I am not prepared to hold, having regard to what fell from the Union Court on the 6th June that the Court intended thereby to decline to entertain the suit or to decide that it had no jurisdiction or that through want of jurisdiction or any other cause of a like nature it was unable to entertain the suit.

4. The second contention upon which the learned vakil for the opposite party sought to uphold the decision under review was that, assuming that he was entitled to the benefit of Section 14 for the period between the 2nd May and 6th June, he was also entitled upon the same ground to the benefit of Section 14 in respect of the period from the 6th June to 14th June because on the 6th June he had applied for a copy of the order of the Union Court that had been passed on that date, but the copy was not supplied to him until the 12th June, which was a Saturday, and he filed his suit in the Small Cause Court on the following Monday the 14th. In support of this contention he relied upon the case of Lakshiram Mandal v. Sonatan Basar [1912] 15 C.L.J. 160 decided by Mookerje and Teunon, JJ. in which their Lordships gave a very wide and liberal interpretation to the provisions of Section 14.

5. It is, unnecessary, to express any opinion as to the correctness of that decision because, in my opinion, it was unnecessary for the opposite party to wait from the 6th to the 14th June before he filed his suit in the Small Cause Court. The suit could have been filed without a copy of the order of the Union Court, although no doubt it would have been right and proper to draw the attention of the Small Cause Court to what had taken place in the Union Court in due course. In my opinion, neither of the two grounds upon which the learned vakil on behalf of the opposite party has based his contention that the order under review should be supported is sound. The result is that the suit in the Small Cause Court was barred by limitation, and the decree passed by the Munsif on the 22nd December 1926 cannot stand. The decree is set aside, and the suit dismissed.

6. In the circumstances of this case I make no order as to costs in either Court, aid I desire to express no opinion as to whether it is still open to the opposite party to prosecute the proceedings which he initiated on the 2nd May before the Union Court.


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