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Corporation of Calcutta Vs. PulIn Chandra Daw and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata High Court
Decided On
Case NumberSuit No. 389 of 1960
Judge
Reported inAIR1977Cal443
ActsLimitation Act, 1908 - Section 14
AppellantCorporation of Calcutta
RespondentPulIn Chandra Daw and ors.
Appellant AdvocateP.K. Roy and ;P.K. Ghosh, Advs.
Respondent AdvocateJ. Mitra, Adv.
Cases ReferredNobo Doorga Dossee v. Foyz
Excerpt:
- .....suit, is whether the plaintiff can take advantage of section 14 of the lim. act, 1908 by reason of earlier proceedings and thereby save limitation ?2. the plaintiff instituted this suit on march 21. 1960. the case in the plaint is inter alia that in may 19, 1919, the then corporation of calcutta acquired premises no. 12, naya katna lane, calcutta (hereinafter referred to as the said premises) for development purposes. the predecessor in interest of the defendants the then owners of the said premises, made an application for retention of a portion of the said premises as not being required for the said development purposes under section 375(2) of the calcutta municipal act, 1899, then in force. after several proceedings it. appears the owners as directed, elected to pay an annual fee of.....
Judgment:
ORDER

Monjula Bose, J.

1. The point of law which arises for determination in this suit, is whether the plaintiff can take advantage of Section 14 of the Lim. Act, 1908 by reason of earlier proceedings and thereby save limitation ?

2. The plaintiff instituted this suit on March 21. 1960. The case in the plaint is inter alia that in May 19, 1919, the then Corporation of Calcutta acquired premises No. 12, Naya Katna Lane, Calcutta (hereinafter referred to as the said premises) for development purposes. The predecessor in interest of the defendants the then owners of the said premises, made an application for retention of a portion of the said premises as not being required for the said development purposes under Section 375(2) of the Calcutta Municipal Act, 1899, then in force. After several proceedings it. appears the owners as directed, elected to pay an annual fee of Rupees 1,641/- and the then Corporation of Calcutta refrained from acquiring the surplus land. It is alleged that the owners failed to pay the said exemption fee from March 24, 1951 till March 23, 1959 and the plaintiff as the successor in interest of the Corporation constituted under the 1899 Act become entitled to a sum of Rupees 13,128.00 p. for the said period with interest thereon at 6% p. a. aggregating to a sum of Rs. 15,884.88 p., which amount the plaintiff seeks to recover in this suit.

3. It is contended that no part of the plaintiffs claim is barred by limitation as the plaintiff had been prosecuting an earlier proceeding founded on the same cause of action with due diligence and good faith. A suit, being Suit No. 815 of 1952 was instituted by the Corporation in Feb., 1952 against the defendants for recovery of arrears of exemption fee for a period from March 1939 till March 1957, claiming the same to be a charge on the said premises. A mortgage decree was passed on January 12, 1956 by the trial Court in favour of the plaintiff on the basis that the said fee formed a charge on the said premises. On appeal, the decree was partly set aside on May 13, 1959 by the Appeal Court, which held that the said fee did not form a charge on the said premises.

4. The defendants filed a joint written statement in this suit. The defendant No. 2 died during the pendency of this suit and his heirs and legal representatives have been substituted in his place and stead as the defendants Nos. 2 (a), 2 (b), 2 (c), 2 (d) and 2 (e). The substituted defendants have also filed an additional written statement.

5. The defendants contend that the major part of the plaintiff's claim is barred by limitation. They deny that the plaintiff's cause of action in this suit is the same as in the earlier proceedings.

6. Mr. J. Mitra. learned counsel for the defendants conceded that the defendants were liable to pay the stipulated exemption fee from March 24, 1957 till March, 1959 aggregating Rs. 4,923/- and the said claim was not barred by limitation.

7. The only issue raised and settled at the trial was :-- 'Is the claim of the plaintiff for the period between March 24, 1951 and March 23, 1957 barred by limitation ?' No oral or documentary evidence was adduced by the parties who contended that the answer to the issue would depend upon the construction of Section 14 (1) of the Lim. Act, 1908. The material part of the said section reads as follows :--

14. Exclusion of time of proceeding bona fide in Court without jurisdiction--(1) In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action 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,

2. .....

Explanation I .....

Explanation II .....

Explanation III -- For the purposes of this section misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.

8. Mr. P. K. Roy learned counsel appearing with Mr. P. K. Ghosh, for the plaintiff cited several decisions in support of his contention that the said section applied in the facts and circumstances of the present case and cited the decision Ramdutt v. E. D. Sasoon & Co. reported in AIR 1929 PC 103. It was held in this case that time taken for prosecuting a claim in good faith before an Arbitrator having no jurisdiction should be excluded when computing the period of limitation. To show that the same principle would be applicable even where proceedings are taken before a competent court of jurisdiction which for some reason or other is unable to pass a decree. Mr. Roy cited S. K. Dutt v. Purnachandra Sinha reported in AIR 1949 Cal 24 at p. 44 and India Electric Works Ltd. v. James Man-tosh reported in : [1971]2SCR397 and contended that the phrase 'other cause of a like nature' in the section must be construed liberally. Explanation III to the section contemplated cases of misjoinder and non-joinder though strictly speaking, such cases could hardly be regarded as a defect of jurisdiction. Mr. Roy submitted that in the instant case, although there was no prima facie defect of jurisdiction, the fact that in the earlier proceedings a mortgage decree was wrongly passed on the basis of an erroneous finding of a charge, which was ultimately reversed by the Appeal Court which passed only a money decree, made the earlier proceedings defective in a manner as to bring it within the purview of the said section and he contended that the said period between the date of institution of the said suit in February 1952 and the final disposal thereof in Appeal in May, 1959, should be excluded when computing the period of limitation.

9. Mr. Roy lastly cited the case of Corporation of Calcutta v. Hindusthan Construction Co. Ltd. reported in : AIR1972Cal420 for the proposition, limitation in such a case would run from the date of the judgment of the Appeal Court.

10. He contended further, that in the absence of any issue, the prior proceedings must be held to have been prosecuted in good faith and the plaintiff should get the benefit of the said section.

11. Mr. J. Mitra, learned counsel for the defendants has contended on the other hand that to get the benefit of the said section the plaintiff had to establish that the subsequent proceedings were founded on a cause of action, same as in the earlier proceedings, and further that the prior suit could not be entertained by the Court by reason of a defect of jurisdiction or any other cause of a like nature. Mr. J. Mitra laid emphasis on the part of the section viz. that the Court must be unable to entertain the earlier proceedings.

12. Mr. Mitra next relied upon the decision in Siddalingana Gowd v. Bhimana Gowd reported in 68 Mad LJ 487 at pp. 489 and 490 : (AIR 1935 Mad 731 at pp. 732-733) for the proposition that for the application of Section 14 of the Lim. Act, the proceeding must have failed on the ground of want of jurisdiction or other defect of like nature. In the decision cited the plaintiff's claim was prima facie barred by limitation, but the plaintiff claimed the benefit of Section 14 in respect of the period during which the matter was pending in second appeal and in respect of the period during which they were prosecuting diligently earlier proceedings by way of a claim for restitution, and the Court held 'the mere fact that the plaintiffs might have honestly believed that they could get all that they are entitled to by way of proceeding in restitution will not suffice to give them the benefit of Section 14.'

13. Moreover in the instant case, both the Trial Court and the Appeal Court decided the earlier suit on merits, the only finding of the Appeal Court was that Section 357 of the Calcutta Municipal Act, 1899 did not create any charge in favour of the plaintiff and the plaintiff was not entitled to claim a charge. As such, neither Court was prevented from entertaining the proceedings. Mr. Mitra places reliance on that part of the Judgment of the Appeal Court where it was stated as follows :--

'As I have held that the plaintiff respondent is not entitled to get a mortgage decree, it becomes necessary for the purpose of determining the amount for which a decree may be passed in favour of the plaintiff respondent, to consider the question as to which Article of the Lim. Act govern this claim. The learned counsel for the parties have agreed that Article 120 is applicable to the facts of this case and they are also agreed that the sum of Rs. 9,846/- is the sum to which the plaintiff respondent is entitled in the event of this court holding that the plaintiff is not entitled to a mortgage decree but only to a money decree. The appeal is therefore, allowed, in part'.

In support of his contentions Mr, Mitra further cited the case of Madan Mohan Jew v. Bejoyabati Dassi reported in : AIR1954Cal202 . Here the Court held that if an application under Order 21, Rule 89 of the Civil P. C., was dismissed on the ground that the required deposits have not been made in time, such dismissal would be on merits and not due to 'defect of jurisdiction or other cause of a like nature' within the meaning of Section 14 of the Lim, Act. In such a case the applicant could not exclude time spent in prosecuting the earlier application for computing the period of limitation for a subsequent application under Order 21, Rule 90. Mr. Mitra also cited Rajabapayya v. Basvayya reported in AIR 1942 Mad 713 where the plaintiff having failed in his petition for insolvency, filed a suit on the same cause of action. The Court held that Section 14 of the Lim. Act, 1908 was not attracted as the Insolvency Court had in fact entertained the earlier application on merits. Mr. Mitra contended that the case of India Electric Works Ltd. (Supra) cited on behalf of the plaintiff was in the defendant's favour. Mr. Mitra lastly cited Jai Kishen Singh v. Peoples Bank of Northern India reported in AIR 1944 Lah 136 (FB) which was noted in the case of India Electric Works Ltd. It was held in that case that in Section 14 of the Lim- Act, the words 'or other cause of a like nature' however liberally construed, must be read so as to convey something ejusdem generis or analogous to the preceding words 'from defect of jurisdiction'. Read along with the expression 'is unable to entertain', such words would denote, that the defect must be of such a character so as to make it impossible for the Court to eniertain the earlier suit or application either in its inception or at all events as to prevent it from deciding it on the merits.

14. On a careful consideration of the respective contention of the parties I find the defendant's case to be of more sub-stance. In my view the claim of the plaintiff in the prior suit having been ad-judicated upon and disposed of on merits, it can hardly be said that the previous suit filed in 1952 was altogether misconceived, or that the Courts were under any infirmity or there was any defect of jurisdiction or any defect of like nature which prevented the Courts from entertaining the earlier suit.

15. It also appears to me that the cause of action in this suit being a claim for arrears of exemption fees from March, 1951 till March, 1959 is not identical with the cause of action in the earlier proceeding which comprised a claim for arrear fees from March, 1939 till March, 1957.

16. For the proposition that a claim for each year's rent constituted by itself a separate and entire cause of action Mr. Mitra cited Nobo Doorga Dossee v. Foyz-bux Chowdhury a case reported in (1876) ILR 1 Cal 202 and also relied on a passage in Mulla's Code of Civil Procedure (13th Edition) at p- 58.

17. For the reason above, I hold that the plaintiff's claim for arrears of fees from March. 1951 till March, 1957 is barred by limitation and the plaintiff is not entitled to exclude the period spent in the earlier proceedings in Suit No. 815 of 1952 and the appeal from the decree therefrom for computing the period of limitation under Section 14 of the Indian Limitation Act. 1908. I answer the only issue accordingly, in the negative and in favour of the defendant.

18. There will however be a decree in favour of the plaintiff for the undisputed sum of Rs. 4,923/- being arrear fees from March 1957 to March, 1959, interim interest and interest on Judgment thereon at the rate of 6% per annum and costs. The only issue raised having been answered in favour of the defendant, I was at first not minded to allow costs to the plaintiff, but the said sum of Rs. 4,923/- admittedly due has not been deposited in Court, and the plaintiff being a public body whose statutory dues have remained unpaid without any justification I allow such costs.


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