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Ganga Charan Das and anr. Vs. Akhil Chandra Saha on the Death of Radha Raman Saha and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in35Ind.Cas.595
AppellantGanga Charan Das and anr.
RespondentAkhil Chandra Saha on the Death of Radha Raman Saha and ors.
Cases ReferredSee Haridas Roy v. Sarat Chandra Dey
Excerpt:
limitation act (ix of 1908), section 14, expl. 1 - civil procedure code (act v of 1908), order vii, rule 10--return of plaint--time necessary for re-filing, exclusion of--proceedings in suit, termination of, by return of plaint. - .....2 of section 14.2. but then if the proceedings in the suit in the munsif's court ended on the 30th june the plaintiffs are still within time. order vil, rule 10, civil procedure code, provides that on returning a plaint the judge shall endorse thereon the date of its presentation and return the name of the party presenting it and a brief statement of the reasons for returning it. the return of the plaint with these particulars, therefore, seems to terminate the connection of the court with the plaint, which it cannot entertain. so far as this case is concerned, the costs were ordered to be paid by the order of the 23rd of june, so that no further judicial act remained to be done. the costs were calculated later but the plaintiffs had nothing to do with that; they were not prosecuting the.....
Judgment:

1. The plaintiffs attached certain properties in execution of a decree against defendant No. 9. Some of the other defendants claimed the same and were successful. The claims were allowed on the 3rd of September 1908 and the plaintiffs brought this suit on the 2nd of September 1909 in the Court of the Munsif of Dacca. The defendants objected to the valuation of the suit and on the 23rd of June 1910, the learned Munsif held that the suit was undervalued and ordered the plaint to be returned and directed the plaintiffs to pay costs to the contending defendants. The plaint was accordingly returned on the 27th of June. The costs payable by the plaintiffs to the contending defendants were subsequently calculated in the office and on the 30th June an order fixing the amount at Rs. 25 was recorded in the order-sheet. When returning the plaint on the 27th of June the learned Munsif directed that the plaint might be re filed in the proper Court within 5 days. The plaint was actually re-filed on the 1st of July 1910, within the 5 days so allowed. It is contended, however, that the suit is barred by limitation as the learned Munsif had no authority to grant the additional 5 days. The plaintiffs contend, first, that the Munsif was right in granting time and secondly, that the proceeding in the Munsif's Court ended on the 30th of June when the order assessing costs wag made, and in either case they are within time. Explanation 1 to Section 14 of the Limitation Act lays down that in excluding the time during which a former suit was pending tne day on which the suit was instituted and the day on which the proceedings therein ended shall both be counted. No further time is allowed as in Clause 2 for going from one Court to another. There is no other provision in the Limitation Act or in the Civil Procedure Code for allowing further time and the order allowing further time must be considered as a nullity. See Haridas Roy v. Sarat Chandra Dey 18 Ind. Cas. 121 : 17 C.W.N. 515. This view of the matter might cause hardship in some cases, as the plaintiff might require time to secure further costs or to reach the new Court. But a plaintiff who files his suit on the very last date available to him under the law of limitation takes the risk, and the law does not make any provision for such time except in cases coming under Clause 2 of Section 14.

2. But then if the proceedings in the suit in the Munsif's Court ended on the 30th June the plaintiffs are still within time. Order Vil, Rule 10, Civil Procedure Code, provides that on returning a plaint the Judge shall endorse thereon the date of its presentation and return the name of the party presenting it and a brief statement of the reasons for returning it. The return of the plaint with these particulars, therefore, seems to terminate the connection of the Court with the plaint, which it cannot entertain. So far as this case is concerned, the costs were ordered to be paid by the order of the 23rd of June, so that no further judicial act remained to be done. The costs were calculated later but the plaintiffs had nothing to do with that; they were not prosecuting the suit in the Court of the Munsif after that Court returned the plaint, and the explanation cannot be read as extending the time excluded beyond the time when the plaintiffs may be said to have been prosecuting their suit In this view of the matter the order for costs passed on the 30th of June cannot be taken into consideration. The suit is, therefore, barred by limitation and it is not necessary to consider any other question. The appeal is dismissed with one set of costs to be divided among three sets of respondents.


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