Patna High Court
Kamta Prasad Singh vs Ram Narayan Lall on 24 November, 1955
Equivalent citations: AIR1957PAT139, AIR 1957 PATNA 139
JUDGMENT Raj Kishore Prasad, J.
1. This is a defendant's second appeal, against the concurrent decrees, passed by the courts below in a suit in ejectment, brought by the plaintiff-respondents.
2. The plaintiffs' father purchased the suit lands at a court sale, and thereafter got delivery of possession over them through court. The plaintiffs' " father was recorded in the survey Record of Rights also in respect of the disputed lands. The final publication of the Record of Rights took place on 21-1-35. Thereafter, the plaintiffs' father died, and the plaintiffs came in possession of the disputed properties.
It was alleged that they were dispossessed In April, 1937, by the defendant, from Khata 192. Subsequently in 1946, they were dispossessed from Khata 194 also by the defendant when he constructed a house on this plot. On these allegations, the plaintiffs brought the suit for a declaration of titled and recovery of possession, in respect of the disputed lands.
3. The defendant contested the suit. His defence was that the suit was barred by limitation, and that the sale of the disputed lands was illegal, as it was held by the defendant's father, in lieu of service, under the Maharaja of Chotanagpore, & that there was never any delivery of possession through court in favour of the plaintiffs' father, nor, was he ever in possession of the lands. The defendant asserted that he had always been in possession of the disputed lands.
4. The first court found that the suit lands were purchased by the plaintiffs' father, who obtained delivery of possession through court, and that the entry in the record of rights of the revisional survey was correct. It also found that the suit was not barred by limitation. On these findings, it decreed the suit.
5. On appeal by the defendant, the learned Subordinate Judge affirmed" the findings of the first court, and held that the suit was not barred by limitation, and, therefore, the decree passed by the first court was correct. On these findings ha' dismissed the appeal.
6. The defendant, against the aforesaid decree, has preferred the present appeal.
7. Mr. Krishna Ballabh Narain Singh, appearing for the appellant, has substantially taken three points before me; (1) that the plaintiffs' siut was barred by limitation under Art. 142 of the Limitation Act, inasmuch as the court of appeal below had given no specific finding that the plaintiffs had subsisting title in the lands in suit; (2) that the courts below have taken a wrong view of the law in treating the suit originally instituted on 20-1-47, as having been validly instituted, in spite of the fact that the .plaint was reregistered as a new suit on 14-4-49; and (3) that the court of appeal below had misplaced the onus by wrongly placing it on the defendant to establish the continuous possession of the plaintitfs from the survey record of rights, even when the plaintiffs themselves pleaded that they were dispossessed in April 1937 from Khata 192.
8. In order to appreciate the second objection, mentioned above, it is necessary to state a few more facts. The plaint was originally filed on 20-1-47 before the Munsif of Ranchi, because the valuation of the suit mentioned in the plaint was Rs. 192/8/r, the amount, at which the entire property, only a portion of which was in dispute; had been purchased by the plaintiffs' father. An objection was taken by the defendant about the undervaluation of the suit, and the jurisdiction of the court to try the suit.
This was, considered by the learned Munsif, and he by his order dated 28-2-48 found that the price mentioned in the sale certificate was no guide; as the market value of the land had to be taken into consideration. He accordingly, after consideration of the evidence of the parties, came to the conclusion that the proper valuation of the suit land should be Rs. 2,100, which was beyond the pecuniary jurisdiction of the court. He, there fore, directed that the plaint should be presented to the proper court on or before 28-3-48 It may be mentioned here that the learned Munsif did not find that the valuation given by the plaintiffs was deliberately low and mala fide. Against this order the plaintiffs preferred an appeal, which was heard by the learned Subordinate Judge, who has decided the present appeal He by his order dated 30-3-49 agreed with the finding of the learned Munsif on the point of valuation. He, however,' towards the end of his judgment gave the following direction:
"I find that the plaint has not yet been returned to the filing pleader for presentation to the proper court as directed, and since the learned Munsif has been vested with powers to try suits up to the valuation of Rs. 4000, he will' allow a fortnight's time to the plaintiffs to pay the proper court fee, and accept the plaint".
9. With the above observation, the plaintiffs' appeal was dismissed. On receipt of this order, the learned MunsiE on 14-4-49 passed an order to the effect that let the plaint be filed with proper valuation and court fee by 30-4-49. As the plaint was lying in the court of the Munsif, and it had not been taken back by the plaintiffs' lawyer, nor had it been returned to him, the plaintiffs' pleader objected to the refiling of the plaint on the ground of limitation. On this objection of the plaintiffs, the learned Munsif passed the following order on 22-4-49.
"But there is a statistical difficulty, inasmuch as the appeal has been dismissed, and this spit has been disposed of and so shown in the register, Hence to avoid all difficulties let this suit be converted into a new title suit of this year and numbered as such".
In accordance with this order the plaint was registered as a new suit on 23-4-49. In view of these facts, it is contended that the suit, out of which the present appeal arises, should be deemed to have been instituted on 14-4-49, and not on 20-1-47, and on this basis submissions at length have been made by Mr. Singh, which will be considered hereafter.
10. As regards the first contention of Mr. Singh, the first court found that the plaintiffs' case that they were dispossessed from the suit lands in April 1937 was correct. He further found that even if the alleged date of dispossession in April 1937 be supposed to be not correct, the plaintiffs were certainly in possession from the date of the' final publication of the Record of Rights, that is, from 21-1-35, and, therefore, the suit having been instituted on 20-1-47, it was within 12 years from the date of the. final publication of the Record of Rights, and as such the suit was not barred by limitation.
On appeal the learned Subordinate Judge did not give any specific finding as to whether the plaintiffs' story that they were dispossessed in April 1937 was correct, or not. He took the view that it was certain that the plaintiffs were dispossessed sometimes after 21-1-35, the date of the final publication of the Record of Rights, and, therefore, the suit was not barred by limitation. He also rejected the defendant's case that he continued to be in possession from before the survey, and that there was no delivery of possession in favour of the plaintiffs' father. He, therefore, relied on Sk. Barakat v. Basant, 39 Ind Cas 356: (AIR 1917 Cal 79) (A),- in which it has been held that where in a suit for ejectment, the record of rights raised a presumption in plaintiffs' favour, the onus is shifted to the defendant to establish affirmatively that the plaintiff has been out of possession for more than 12 years.
Mr. Singh's contention that there is no specific finding by the court of appeal below that the plaintiffs had subsisting title is correct, but when the learned Subordinate Judge accepted the plaint filed on 20-1-47 to be validly presented, and, further found that the plaintiffs had proved their possession within 12 years of the suit, counting the limitation from the date of the final publication of the record of rights, I think that finding was enough to negative the contention of the defendant that the plaintiffs' suit was barred by limitation. There is no question of limitation, if the suit be deemed to have been Instituted on 20-1-47. The first contention must, therefore, be overruled.
11. The second contention, which is the main question for determination is, whether the plaint filed on 20-1-47 should be considered to have been validly presented, in the circumstances stated before. Mr. Naseem Ahmad, appearing for the plaintiffs respondents, contends that the period spent in prosecuting the suit and the appeal from 20-1-47 to 14-4-49 should be excluded under Section 14, of the Limitation Act, although in the present case there is no question of refiling the plaint in a new court after taking it back from the first court, inasmuch as the court was the same and the plaint filed in this court was never returned to the plaintiffs, nor did they themselves take out the plaint . from there for presenting it before another court.
Mr. Singh's contention is that if exemption is sought under Section 14 of the Limitation Act, then that fact has to be pleaded in the plaint, as required by Order 7, Rule 6, C. P. C.; and if it is not so pleaded, then it is not open to the plaintiffs to seek any aid from Section 14 of the Limitation Act. In support of his contention he relies on Mahadeva Sastrigal v, Marulai Raddiar, AIR 1933 Mad 874 (A-l), in which it was laid down that without an amendment of the plaint, plaintiffs cannot be allowed to take a ground, which would save limitation, not taken in plaint.
In reply to this Mr. Naseem Ahmad relies on Raghunath Bhagat v. Syed Samad Seah, 12 Cal WN 617 (B). in which a Division Bench of the Calcutta High Court held that the period, during which a suit was prosecuted bona fide in a court without jurisdiction was properly excluded in computing the period of Limitation, although the plaintiff in his plaint did not expressly ask for an extension of time on that ground. As regards this objection of Mr. Singh, in my opinion it has no substance.
The plaint was filed with an allegation that the plaintiffs were dispossessed in April 1937 and 1946, and on those allegations these two dates were the causes of action for the suit. On these two dates there was no question of limitation, nor there was any question of the plaintiffs asking for exemption from limitation. This question arose subsequently in view of the facts stated before.
None of he Courts below have either referred to, or relied upon Section 14 of the Limitation Act, obviously because no reliance was placed on Section 14 of the Limitation Act. If in the 'course of a suit a question of limitation arises, although on the plaintiffs' own case, there is no question of limitation, then, in my opinion, in such a case it is not at all necessary, nor is it possible for the plaintiffs to anticipate that a circumstance would arise hereafter, which may make them rely on Section 14 of the Limitation Act. Therefore, the objection that the application of Section 14 of the Act cannot be considered by this Court, because no such ground has been taken in the plaint, must be overruled.
12. The question, therefore, for consideration Is whether Section 14 of the Limitation Act should be applied to the present case.
13. Section 14(1) of the Limitation Act runs thus:
"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."
14. For the contention that it has no application, reliance has been placed on Ramdutt Ramkissendass v. P. D. Sasoon & Co., 56 Ind App 128: (AIR 1929 PC 103) (C); Ramchandra v. Khodaijatulkubra, ILR 24 Pat 462; (AIR 1945 Pat 369) (D) and Jiwan Ram Ramchandra v. Jagernath Sahu, 18 Pat LT 250: (AIR 1937 Pat 495) (E). Mr. Naseem Ahmed has in reply relied on 'two cases, namely, Brijlai Geinka ,v. Janendra Narain Chau-dhari Bahadur, AIR 1935 Pat 82 (F) and Perumal v. Pandaram, AIR 1951 Trav-C 26 (G).
15. Where a suit had been instituted in a Court, which is found to have no jurisdiction, and' it is found necessary to raise a second suit in a Court of proper jurisdiction, the second suit cannot be regarded as a continuation of the first, even though the subject-matter and the parties to the suit, were identical. Their Lordships of the Judicial Committee, while laying down the above proposition in the case of Ramdutt Ramkissendass (C), referred to above, further observed that the hardships that might arise in such a case have, however, been expressly provided for by the provisions of the Indian Limitation Act. Their Lordships were not considering the case of two suits, but of two arbitration proceedings. But their Lordships' judgment proceeded on the analogy of the arbitration proceedings to suits. Their Lordships, therefore, applied Section 14 to that case.
16. In the case of Ramchandra (D) referred to above, the valuation given by the plaintiff was found to be a gross understatement of the value Of the property in dispute. In the suit, out of which the appeal arose, the Court below had held that the plaintiffs were not entitled to the benefit of Section 14 of the Limitation Act, because they deliberately undervalued their plaint, which was filed in the Munsif's Court. Hence, it was of the opinion that it cannot be said that the plaintiff had been prosecuting the suit bona fide and with due diligence in the Munsif's Court as required by the provisions of Section 14 of the Act.' In those circumstances, their Lordships, who decided that case, held that Section 14 did not apply, and, therefore, the time spent in prosecuting the suit in the Munsif's Court, could not, under Section 14 of the Limitation Act, be allowed for computing the period of limitation in the suit.
17. In the other case, Firm Jiwan Bam Ram-chandra (E), referred to above it was held that where a Court has no jurisdiction to try a case it has no jurisdiction to pass an order to the prejudice of one of the parties. Where, therefore, a plaint is filed before a Court having no jurisdiction to entertain it, and the plaint is returned for being presented to the proper Court within a certain time, the plaintiff in computing the period of limitation is not entitled to take advantage of that order.
Their Lordships further laid down that the equitable rule that the Court returning the plaint ought to give a reasonable time to the plaintiff for presenting it to the proper Court, and should decide what reasonable time in a particular case is, can be invoked only in aid of a party who has been diligent in pursuing his remedy, and not of a person who having postponed the institution of his suit until the last date of limitation, institutes it in a Court which has no jurisdiction to try it. In this case the Court, where the suit was instituted previously, had admittedly no jurisdiction to entertain it, and in those circumstances, their Lordships held that the plaintiff was not entitled to any indulgence provided by Section 14 of the Limitation Act, obviously because in such a case it can not be said that the plaintiff acted in good faith. The last two cases, therefore, can have no application to the present case.
18. In the case of Brijlal Goinka (F), referred to above, a Division Bench-of this Court held that Section 14 merely says that in computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting it in a Court which, from defect of jurisdiction, is unable to. entertain it, shall be excluded; and the plaintiff is entitled to claim the benefit of this provision, whether it comes up on the second occasion with the original plaint, or with a new plaint. In this case a suit was originally instituted In the Court of the Subordinate Judge, when the area lying in Santal Parganas was under settlement, although it ought to have been instituted in the Court of the Settlement Officer, and the Subordinate Judge had no jurisdiction to entertain it. After being ordered by the Court to refile the-plaint in the proper Court, the plaintiff instituted another suit in the Court of the Subordinate Judge, who by that time had jurisdiction to entertain the suit, since the settlement was completed. This Court upheld the order of the Courts below, applying Section 14 of the Limitation Act to the case. In my opinion, the principles laid down in this case, and the Privy Council case, referred to before, apply to the present case also.
19. Statutes of limitation are statutes of repose. There was a serious risk ,of injustice arising if the period of limitation should be strictly applied. Hence, the necessity for some provisions to protect a bona fide plaintiff from the consequences of some mistake which had been made by his advisers in prosecuting his claim. With this object in view, some provisions, like Section 14, were formulated, and provided in the Limitation Act. Section 14 is to protect a former infructuous, but bona fide litigation.
20. The principle Underlying Section 14 of the Limitation Act is that the bar of limitation should not affect a person honestly doing his best to get his case tried on merits, but failing through the Court being unable to give him such a trial. The principle is clearly applicable not only to cases in which a man brings his suit in the Court, that is, a Court having no jurisdiction to entertain it, but also where he brings the suit in ' the wrong Court in consequence of a bona fide mistake of law, or defect of procedure. A litigant should not be deprived of his rights by reason of the applicability of the law of HmitKition, when he is diligently and bona fide proceeding to obtain the redress in the higher Court also.
21. In order to attract the application of Section 14, three conditions must co-exist: (1) The plaintiff must have been prosecuting with due diligence another civil proceeding in a Court of first instance, or in a Court of appeal, against the defendant; (2) The two proceedings must have been for the purpose of obtaining the same relief, that is, both must have been founded upon the same cause of action; and (3) The other proceeding must have been prosecuted in good faith in a, Court, which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it. If these conditions are satisfied, the time, during which the plaintiff has been so prosecuting the other proceeding, shall be excluded see L B, Lall v B. M. Khatri, ILR 28 Pat 102: (AIR 1949 Pat 293) (FB) (H) and Yeswant Deorao Deshmuch v. Walchand Ramchand, 1950 SCR 852 at P. 855- (AIR 1951 SC 16 at p. 18) (I).
22. Bearing in mind the above principles, in my opinion, the present case stands on a firmer ground. Neither the MUnsif, nor the Subordinate Judge, who decided the question of valuation, held that the suit has been deliberately undervalued. The only Court, which had jurisdiction to entertain the suit on the valuation originally given, was the Court of the Munsif, before whom the suit was instituted originally. There is nothing on record to show that the plaintiffs acted mala fide in presenting the plaint in the Munsif's Court In the first instance. The Munsif s Court after enquiry found that it had no Jurisdiction to entertain the suit, because on the valuation found by him the suit was beyond his pecuniary jurisdiction. It ordered the return of the plaint for presentation to the proper Court. The plaintiffs thought that the order was not correct, and so they preferred an appeal to the District Judge.
That itself would show that the plaintiffs were diligent in the matter, and they were prosecuting the case in good faith. None of the two Courts below on the present occasion also, have found that, the plaintiffs were not acting in good faith in prosecuting the suit between 20-1-47 and 14-4-49. There is nothing to doubt the bona fides of the plaintiffs, and, therefore, in my opinion, Section 14 of the Limitation Act would certainly apply to the present :ase, and the time spent in prosecuting the suit between 20-1-47 and 14-4-49 would be execluded and, therefore, the plaint would be considered as validly presented on 20-1-47. The provision of Section 14 has been formulated as stated before to protect a, bona fide plaintiff from the consequences of some mistake which had been made by his advisers in prosecuting his claim, and thus to protect a former infructuous, but bona fide, litigation. Section 14 has to be liberally applied. Consequently, the present suit is not barred by limitation.
23. There is another reason also for my holdng that the question of limitation does not arise n the present case. The plaint was filed before the Munsif, and it was never returned to the plaintiffs. It remained throughout in that Court, during the pendency of the appeal, against the order of valuation passed by the Munsif, before the appellate Court. During the pendency of the appeal the same Munsif was vested with powers to try suits up to Rs., 4000/-, and, thereafter, he was quite competent to entertain the suit, and as a matter of fact this Court was the only court, where the suit could be instituted.
The Subordinate Judge, in view of this subsequent event, directed that the learned Munsif should accept the plaint .and grant a fortnight's time, to the plaintiffs to pay the proper court-fee. The Court in view of some difficulty, which it felt, instead of continuing the previous suit, treated it as a new suit, and registered it as a new suit. In such circumstances, I do not understand how the same plaint, which was already lying in his Court, and which had been registered as a regular suit, can be treated as a second suit, and not a continuation of the first. The matter would have been different if the plaint would have been taken back from his Court, and refiled before another Court. In such a case, the second suit raised, on refiling of the first plaint, could not be regarded as a continuation of the first. It is true that the learned Munsif had pecuniary jurisdiction up to Rs. 2,000, and, therefore, he was unable to entertain the suit, and that subsequently he was vested with powers to try suits up to Rs. 4000, but the Court and the personnel remained the same. In such circumstances, the question of a second suit would not arise, and the mere fact that the plaint had been registered, obviously wrongly, as a second suit, will not affect the matter. For these reasons, I hold that there is no question of limitation In the present suit.
24. The last contention of Mr. Singh is that onus has been wrongly placed on the defendants. He has relied on Ramchandra v. Manu Swamy, AIR 1948 Pat 31 (J), in which it was held that the onus lies on the plaintiffs to prove not only that they had title and antecedent possession, but also that he was dispossessed on the alleged date or any other date within 12 years of the institution of the suit. The latter alternative arises only when the plaintiffs fail to prove dispossession. by the defendant on the alleged date. In my opinion, this case does not help Mr Singh at all, because on the findings of the two Courts below the suit was within 12 years from the date of the final publication of the record of rights, and as such the question of dispossession, whether in April 1937 or not, was quite immaterial.
If the plaintiffs would have come after 12 years from the final publication of the record of rights, then surely the question of dispossession would have assumed great importance and in that case the Courts below would have to consider whether the story of possession and dispossession of the plaintiffs is true. In such a case, if the Court found that the story of dispossession is false, or not proved, then obviously the plaintiffs. suit, being beyond 12 years, would be dismissed. But in the present case, that question does not arise. Both parties adduced evidence in the case, and after a consideration of the evidence of both sides, both the Courts below came to the concurrent finding that the plaintiffs had proved their title and possession. In such circumstances, I do not think there is any substance in this contention.
25. For the reasons given above, I rind that there is no merit in this appeal, and, it is accord ingly dismissed with costs.