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Dinabashy Shaha and ors. Vs. Khetter Mohun Chuckerbutty - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in(1884)ILR10Cal265
AppellantDinabashy Shaha and ors.
RespondentKhetter Mohun Chuckerbutty
Cases ReferredGolap Ghund Nowlakha v. Kristo Chunder Das Biswas I.L.R.
Excerpt:
limitation act (x v of 1877), section 14 - special limitation under acts other than the limitation act--suit under registration act (iii of 1877), section 77. - .....v. kristo chunder das biswas i.l.r. 5 cal. 314 and decided by jackson and mcdonell, jj. that was a suit brought for rent, in which the plaintiff had not sued within the three years prescribed by the rent law. on the day when the three years expired the court was closed; but the plaintiff filed his plaint on the following day, and he then claimed the benefit of section 5 of the limitation act, which enacts, that if the prescribed period of limitation expires on a day 'when the court is closed, the suit may be brought on the day when the court re-opens.'10. it was argued there, as it has been here, that general provisions in limitation act would not apply to the special limitation provided by the rent law; but the court held that they did.11. the principle of that case is directly.....
Judgment:

Richard Garth, C.J.

1. This was a suit brought, under Section 77 of the Registration Act for the purpose of obtaining registry of a deed.

2. The reason why the Registrar refused to register it was that the signature of the defendant had not been proved to his satisfaction.

3. A suit was then brought by the plaintiffs in the Munsif's Court, which was eventually dismissed upon the ground that such Court (sic) the proper one to try the question; and the plaint was consequently returned by the Munsif, in order to its being presented in the Subordinate Judge's Court, which was accordingly done.

4. Both the Subordinate Judge and the District Judge have now decreed the plaintiffs' claim; and upon appeal to this Court, two points have been raised, first, that the plaintiffs' claim is barred by limitation; and, secondly, that the District Judge ought not to have found, as he has done, that the application was made to the Registrar by the plaintiffs' authorized agent.

5. With regard to the first point it is said that the Courts below were wrong in giving the plaintiffs the benefit of Section 14 of the Limitation Act of 1877.

6. They gave them the benefit of this section, upon the ground that they had brought their suit by mistake in the wrong Court.

7. It has been argued that the plaintiffs were not entitled to the benefit of that section, because the general provisions of the Limitation Act, relieving plaintiffs under certain circumstances from the consequences of not bringing their suits in time, apply only to the provisions of the Limitation Act itself, and not to any special rules of limitation, such as that contained in Section 77 of the Registration Act, which requires a plaintiff to bring his suit to rectify the Registrar's order within thirty days after it is made.

8. We consider, however, that this point has been virtually decided (against the appellant's contention) in more than one case in this Court.

9. An objection upon the same ground was taken in the case of Golap Ghund Nowlakha v. Kristo Chunder Das Biswas I.L.R. 5 Cal. 314 and decided by Jackson and McDonell, JJ. That was a suit brought for rent, in which the plaintiff had not sued within the three years prescribed by the Rent law. On the day when the three years expired the Court was closed; but the plaintiff filed his plaint on the following day, and he then claimed the benefit of Section 5 of the Limitation Act, which enacts, that if the prescribed period of limitation expires on a day 'when the Court is closed, the suit may be brought on the day when the Court re-opens.'

10. It was argued there, as it has been here, that general provisions in Limitation Act would not apply to the special limitation provided by the Rent law; but the Court held that they did.

11. The principle of that case is directly applicable to the present. Section 14 of the Limitation Act provides for cases, where a plaintiff in perfect good faith, but under a mistake, has sued in the wrong Court, and we see no reason why that section should not avail to protect the plaintiffs in the present case.

12. There are cases in this Court, besides the one which we have quoted where the same principle has been acted upon, and the learned pleader for the appellant has not been able to final a single authority which favours his own contention.

13. Then with reference to the other point, namely, that the Judge ought not to have found that Ram Chunder Shaha, who applied for the registration of the deed was duly authorized by the plaintiffs; we do not find that this point was taken either before the Registrar, or in the Court of First Instance. It has certainly not been raised in the issues; and we are therefore not disposed to entertain it now, especially as the lower Appellate Court has found as a fact that Ram Chunder was duly authorized by the plaintiff's.

14. The appeal will therefore be dismissed with costs.


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