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Basdeo Prasad Khemka Vs. Union of India (Uoi) - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata High Court
Decided On
Case NumberSuit No. 325 of 1965
Judge
Reported inAIR1978Cal100,81CWN1047
ActsLimitation Act, 1963 - Section 14; ;Limitation (Amendment) Act, 1976 - Section 14
AppellantBasdeo Prasad Khemka
RespondentUnion of India (Uoi)
Appellant AdvocateS.N. Modak and ;N.C. Mitra, Advs.
Respondent AdvocateM.N. Banerjee and ;P.K. Sen, Advs.
Excerpt:
- .....does not apply where the first suit has failed owing to the negligence of the plaintiff. in that suit the plaintiff as the attorney knew that the cause of action was only partly within the jurisdiction of this high court and hence leave of the court under clause 12 of the letters patent was necessary in order that this court might have jurisdiction to entertain the case but the plaintiff and the attorney did not make any application for leave. as in that particular case the learned judges came to the conclusion that the plaintiff and/or his attorney were guilty of negligence, naturally the learned judges could not give any relief under section 14 of the limitation act as the prerequisite condition of that section was not fulfilled in that case, in that particular case the learned.....
Judgment:
ORDER

Padma Khastgir, J.

1. The plaintiff has filed the present suit against the Union of India, inter alia, for recovery of Rs. 46,712.62 as price of 3800 tons of Bhusha, interest, cost, etc. The first plaint against the same defendant for the same cause of action was filed on 14th May 1949. As the part of the cause of action arose within and part of the cause of action arose outside the jurisdiction, it became necessary to obtain leave under Clause 12 of the Letters Patent. On 22nd March 1949 the plaintiff served a notice under Section 80 of the Civil Procedure Code on the defendant and it was received on 19th April 1949.

2. The then prevalent practice of obtaining leave under Clause 12 of the Letters Patent was different from what it is now today. In the sense, the plaintiff through its Solicitor or Advocate had to file the plaint with the Master and pray for leave under Clause 12 and the learned Master after scrutiny of the papers on its turn would make an endorsement on the original plaint to that effect and would submit before the Judge for scrutiny.

3. In the present case, the original plaint was also presented before the Master who made an endorsement on the original plaint and admitted the plaint but there is no signature of any learned Judge over the endorsement put by the learned Master.

4. It appears from the original Writ of Summons served on the defendant there is a rubber stamp to the effect 'Leave granted under Clause 12 of the Letters Patent'. The Writ of Summons was signed by Sri P.K. Bose, the then Registrar on 19-5-49. The suit being Suit No. 1819 of 1949 was heard and dismissed on 15-2-65 on the ground that no leave under Clause 12 was obtained and also on the ground that the suit was filed before expiry of two months from the date of service of notice under Section 80 of the C. P. C. On the very next day the plaintiff filed the present suit and presented the plaint and obtained the necessary leave. After the case was openedby Mr. S.N. Modak, Barrister-at-Law with Mr. N.C. Mitra, Barrister-at-Law, the following issues were raised:

1. Did the plaintiff carry on business under the name and style of Express Dairy as alleged in the plaint?

2. Was there any contract by and between the parties in January 1947? If so, is the alleged contract valid and binding on the defendant?

3. Did the property in the case pass in the plaintiff on payment of Rs. 41,000?

4. Did the plaintiff fail or neglect to remove the total quantity of bhusas?

5. What is the total quantity of bhusas removed by the plaintiff?

6. Is the plaintiff entitled to a sum of Rs. 46,713.62 by way of refund?

7. Is the suit barred by law of Limitation?

8. Is the suit barred by the principles of res judicata and by the principles analogous thereto?

9. Has this Court jurisdiction to try this suit?

10. To what relief, if any, is the plaintiff entitled?

5. Mr. M.N. Banerjee, appearing with Mr. P.K. Sen, Barrister-at-Law has submitted that as the suit is barred by the law of limitation and is liable to be dismissed with cost in order to avoid prolonged hearing and unnecessary costs, the issue on the point of limitation should be decided by me first as there was no opposition on behalf of the plaintiff and as also I felt that it might help the parties if the point of limitation is decided, I allowed the parties to argue the point of limitation before me. Mr. Banerjee very strongly contended that the present suit is barred by the law of limitation and he submitted that the plaintiff is not entitled to get benefit under Section 14 of the Limitation Act as there has been negligence and laches on the part of the plaintiff in not obtaining leave under Clause 12 of the Letters Patent. As such the plaintiff cannot contend that he prosecuted the previous proceeding in good faith and with due diligence. In this respect he relied on some decisions.

6. Mr. S.N. Modak on the contrary stated that his client is not guilty of any laches and/or negligence and he has done whatever he could do under the facts and circumstances as stated above and also in view of the practice that was prevalent in those days regarding obtaining of leave under Clause 12 of the Letters

Patent. He further relied on some decisions.

7. Section 14 of the Limitation Act provides for exclusion of time in computing the period of limitation for any suit during which the plaintiff has been prosecuting with due diligence another proceeding whether in a court of first instance or revision against the defendant that shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which from defects of jurisdiction or other cause of a like nature is unable to entertain it. This principle applies to cases where the person brings the previous suit not only in a wrong court but also where he brings the case in the right court is nevertheless prevented from getting a trial on the merits by reason not of any defect in jurisdiction but also for cause of like nature. Thus, Section 14 of the Limitation Act must be liberally construed. This section does not give a discretion to the court but on the other hand the litigant is entitled as a matter of right to exclude the period spent in infructuous proceedings provided the conditions laid down in the section are fulfilled. The power given under Section 5 of the Limitation Act is discretionary but the power under Section 14 is mandatory if the requisite conditions are satisfied by the plaintiff. Section 14 requires good faith and due diligence. Section 2 Sub-clause (h) gives the definition of what is good faith in the following manner:

'Nothing shall be deemed to be done in good faith which is not done with due care and attention.'

8. But the General Clauses Act in Section 3 defines good faith as follows;--

'A thing shall be deemed to be done in good faith where it is done honestly whether it is done negligently or not.'

9. Although the definition given under the Limitation Act is stricter than the definition given in the General Clauses Act while considering Section 14 the definition of good faith given by the Limitation Act should be applied. There-fore, the rule as to what is a good faith is a matter to be decided on the facts and circumstances of each case. I feel indulgence should be granted where the error is one which might have been committed by a reasonable and prudent man exercising due diligence and caution. The burden of proof is on the plaintiff to show that he exercised due diligence and caution. In the present case in view of the fact that the then Mr. Justice Law delivered a judgment on 15th February 1965 and in the said judgment observed on examination of the original plaint filed that there was an endorsement to the following effect: 'Clause 12' and that was done by the then Master and also he came to the conclusion that no leave was in fact obtained from a learned Judge. Although the question of due care, attention and diligence as also of negligence and lack of good faith is a question of fact and depends on the facts and circumstances of each case. In view of the above finding of the Hon'ble Mr. Justice U. C. Law, as he then was, it was not necessary to go into the evidence all over again on the point of obtaining leave under Clause 12 of the Letters Patent. In the present case, the only thing the Solicitor for the plaintiff could do was to crave leave under Clause 12 of the Letters Patent and also to pray for the same from the learned Master and present the plaint in the department. According to the then prevalent practice after the plaint was exhibited by the learned Master the plaintiff's Solicitor had nothing further to do but to rely on the department for the necessary action as once the plaint is filed nobody is entitled to look into the plaint and it was not possible for the plaintiff's Solicitor to go and check and/or verify the same himself. The very fact that immediately after the first suit was heard and dismissed the plaintiff lost no time in filing the present plaint on the very next day and showed his bona fides Unless the plaintiff's Solicitor has prayed for leave under Clause 12 before the learned Master the endorsement to that effect would not have appeared on the original plaint. Moreover, it appears that not only the plaintiff's Solicitor but also the then Registrar, Sri P.K. Bose was under the impression that leave has already been granted. As such, such an endorsement was made on the original Writ of Summons and that was served on the defendant.

'There is no higher principle for the guidance of court than the one that no acts of courts should harm a litigant and it is the bounden duty of the courts to see that if a person is harmed by a mistake of the court he should be restored to the position he would have occupied but for that mistake. This is aptly summed up in the maxim 'actus curiae nemi-pem gravabit'.'

10. I am of the opinion that in this particular case there has been no laches on the part of the plaintiff or its Solicitor but it was only an honest omission through inadvertence of the authority concerned to get the signature of the learned Judge over and above the endorsement 'Clause 12'.

11. The decision reported in : AIR1974Cal231 is also on the point where leave to sue under Clause 12 of the Letters Patent was granted but the learned Judge by a mistake did not sign it and it was argued that in the absence of leave to sue the suit was not maintainable. But it was held in that case that the mistake of the Judge or the officer of the Court should not harm the plaintiff and he should be restored to the position he would have occupied but for the mistake on the principle of maxim 'actus curiae neminem gravabit'.

12. In the above case the facts were similar and it was held that the mistake was on the part of the learned Judge and also of the learned Master whose duty it was to see that the plaint was signed by the learned Judge:

13. Another Division Bench judgment of this Hon'ble High Court reported in AIR 1938 Cal 377 strongly relied, on by Mr. M.N. Banerjee is also on the point of Section 14 of the Limitation Act and the decision reported in AIR 1938 Cal 377 holds that Section 14 of Limitation Act does not apply where the first suit has failed owing to the negligence of the plaintiff. In that suit the plaintiff as the Attorney knew that the cause of action was only partly within the jurisdiction of this High Court and hence leave of the Court under Clause 12 of the Letters Patent was necessary in order that this Court might have jurisdiction to entertain the case but the plaintiff and the Attorney did not make any application for leave. As in that particular case the learned Judges came to the conclusion that the plaintiff and/or his Attorney were guilty of negligence, naturally the learned Judges could not give any relief under Section 14 of the Limitation Act as the prerequisite condition of that section was not fulfilled in that case, in that particular case the learned Judges examined the original plaint and could not accept the statement of the Attorney that he made clear to the Master that he desired to ask for leave, with regard to this case as where such a request is made the endorsement made upon the plaint is different from the endorsement where no such leave is required. In the case where leave under Clause 12 is required the endorsement regarding leave under Clause 12 is there and the plaint is admitted thereafter giving the date. On facts alone the case reported in AIR 1938 Cal 377 can be distinguished from the facts of this case as it appears from the original plaint in this case that there is such an endorsement regarding leave under Clause 12 although not signed by the learned Judge. From that endorsement alone, it would be evident that the Solicitor for the plaintiff must have applied for leave under Clause 12 of the Letters Patent otherwise that endorsement would not have been there. It is true, grant of leave is not a mere formality and the Solicitor must not take it for granted that leave is always given when asked for but in the present case the very fact of the existence of the endorsement on the original plaint as also the endorsement on the original Writ of Summons must have misled the plaintiff and/or his Attorney and there has been no lack of bona fides. The decision reported in AIR 1944 Lah 136 (FB) also deals with Section 14 of the Limitation Act. In that particular case reference has also been made in respect of cases where the suit has been brought without proper leave or because no notice under Section 80 of the C.P.C. is given. The first suit of the plaintiff failed or became infructuous as the court could not entertain the plaintiff's claim unless leave under Clause 12 was obtained and also because of non-expiry of the period of two months of the notice under Section 80 of C.P.C. The plaintiff's first suit failed not because of defect of jurisdiction but because of the 'other cause of a like nature'. The words 'or other cause of a like nature' must be read so as to make it impossible for a court to entertain the suit and prevent it from deciding on its merit. The Full Bench decision of the Lahore High Court (AIR 1944 Lah 136) states that Section 14 of the Limitation Act has been applied in cases where the suit has failed because it was brought without prior leave or where the suit failed as no notice under Section 80 of the C.P.C. was given.

14. Applying the above principle in the present case it is apparent that although the then Hon'ble Mr. Justice U. C. Law had jurisdiction to decide the case of the plaintiff on merits but was unable to entertain the same on account a technical defect and it was not possible for the Hon'ble Court to proceed and consider on merits. In the case reported in : [1971]2SCR397 the above Full Bench decision of the Lahore High Court has also been referred to. In that decision the learned Judges of the Supreme Court denned the meaning of the words 'like nature' and 'is unable to entertain'. Reference has also been made and illustrations of cases have been given which would be covered by the words 'or other causes of a like nature'. Such cases include suits failing because no notice under Section 80 of the C.P.C. was given. In each of these cases the court did not lack jurisdiction but the suit could not be proceeded with and disposed of until the statutory conditions or other provisions laid down had been satisfied and/or fulfilled.

15. In the said case the Supreme Court held that the words 'or other cause of a like nature' must be construed liberally. The case reported in : AIR1951Pat382 deals with the case where the plaintiff withdrew the suit with leave of the Court to sue afresh on the ground that it was filed within two months of service of notice under Section 80 of the C.P.C. and it was held in that case that the plaintiff was entitled to exclude the period of pendency of the suit in computing limitation for a fresh suit.

16. In a case reported in : AIR1955Cal353 Mr. Justice K.C. Chunder, as he then was, decided that -- 'negligence by itself does not show want of good faith where General Clauses Act applies'. He further held that the definition given in the General Clauses Act applies to Section 14 of the Limitation Act. It is only in the Penal Code that good faith requires due care and attention.

17. In conclusion, I am of the opinion considering the facts and circumstances of the case and applying the legal principles, that the plaintiff is not guilty of negligence and/or laches and as such is entitled to exclude the time spent in prosecuting the previous suit being Suit No. 1819 of 1949. Thereafter, I hold that the present suit is not barred by the Law of Limitation and as such I answer the issue No. 7 in the negative.


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