Patna High Court
Harnandan Singh And Ors. vs Maharani Kuar And Ors. on 22 July, 1968
Equivalent citations: 1969(17)BLJR28
JUDGMENT Shambhu Prasad Singh, J.
1. This appeal was filed by nine defendants Nos. 4 and 8 to 15 who had contested the suit in the court below. Two of these defendants-appellants, namely, Mosst. Maheshwari Kuer and Sital Singh, who were appellants 1 and 2 respectively, died during the pendency of the appeal. Some of their heirs were not substituted in their place and a question arose as to whether the appeal had become incompetent because of their non-substitution. By his judgment dated the 13th of February, 1962, U. N. Sinha, J. held that the appeal had become incompetent and dismissed it. Thereafter there was an appeal under the Letters patent which was allowed and the judgment and the decree of U. N. Sinha, J. were set aside holding that the appeal was competent. After the judgment of the Letters Patent the appeal has been placed before us for final hearing. An application under Order 41, Rule 27, of the Code of Civil Procedure was also filed by the appellants for taking certain documents as additional evidence in the appeal. By order No. 35 dated the 22nd of October, 1962 of the Registrar of the Court the petition was ordered to be put up at the time of the hearing of the appeal, but it has not been pressed before us.
2. Mr. Lal Narayan Sinha appearing for the appellants has urged only one point in the appeal, namely, that the suit is barred by limitation and the judgment of the court below on that issue is not correct. In the circumstances it is not necessary to state facts of the case in detail, but facts necessary to appreciate the arguments of Mr. Sinha on the question of limitation may briefly be stated. The plaintiffs instituted the suit claiming the that they were heirs of Bhaju Singh and Dhanpat Singh. According to any them, Bhaju and Dhanpat had two other brothers, Chamari and Daso, who all were separate from one another and had four annas share each. Daso Singh and other persons (not Bhaju and Dhanpat) had executed a simple mortgage bond in the year 1924 and in order to realise the dues under the said mortgage bond, a mortgage suit numbered as 214 of 1939 was filed which was decreed exparte. In execution of that exparte decree the properties of Schedule I were auction-sold on the 16th of November, 1942. Delivery of possession was taken on the 25th of January, 1943. The plaintiffs claim that they had no knowledge of these proceedings and as the executants of the mortgage bond had no authority or right to mortgage the plaintiffs' share in the properties, they were not bound by the mortgage decree or the sale held in execution thereof. Ac* cording to them, the defendants did not acquire any interest in the properties mentioned in Schedule I of the plaint by virtue of the auction-sale so far as the plaintiffs' interest was concerned. They came to know of the decree and sale only on the 10th of Aghan 1365 Fs. when the defendants began to interfere with their peaceful possession and dispossessed them. On these allegations the plaintiffs asked for recovery of possession of their properties in Schedule I. They also claimed partition of their eight annas share in the properties of Schedule II of the plaint as they were not pulling on well with the defendants.
3. The suit was originally instituted before a Munsif on the 24th of January, 1955. In paragraph 14 of their plaint the plaintiffs valued Schedule II properties at Rs. 1,000/-. They did not state what was the value of the properties of the other Schedule. The defendants appeared and challenged the jurisdiction of the Munsif to try the suit on the ground that it was undervalued and beyond his pecuniary jurisdiction. On an enquiry the Munsif found in favour of the defendants and on the 13th of April, 1957, made an endorsement on the plaint as required under Rule 10(2) of Order 7 of the Code of Civil Procedure for its return, to the plaintiffs. The plaint was actually, returned to the plaintiffs' lawyer on the 28th May, 1957. On the 30th May, 1957, it was refiled before a Subordinate Judge. At the time of the presentation of the plaint before the Subordinate Judge, the plaintiffs valued the properties in suit. only at Rs. 5,000/- and did not accept the valuation of Rs. 30,000/- as fixed by the Munsif, The question of valuation was reagitated before the Subordinate Judge who accepted the. finding of the Munsif on the question. Thereafter the plaintiffs reamended the valuation and, paid the necessary court fee.
4. In their written statement the contesting defendants, i.e., the appellants stated that Dhanpat Singh was not a member of the family and that all the members of the family of which Dasu Singh was Karta were joint at the time of the execution of the mortgage bond and it, being for legal necessity and consideration, was binding on the family. Their case further was that the plaintiffs had knowledge of the suit and the execution proceeding and there was no merit in their case. They also pleaded that the suit was barred by limitation. The Subordinate Judge found in favour of the plaintiffs on all the issues and decreed the suit in respect of both the schedules. His decree for the partition of Schedule II properties has not been challenged in the memorandum of appeal to this Court which is confined only to Schedule I properties.
5. Undoubtedly on the 30th of May, 1957 when the suit was filed before the Subordinate Judge, it was prima facie barred by limitation in respect of Schedule I properties being beyond 12 years from the 25th of January, 1943, the date of delivery of possession in favour of the defendants. The court below has held the suit to be in time on the ground that the plaintiffs were entitled to exclude under Section 14 of the Indian Limitation Act, 1908 (hereinafter to be referred as 'the Act') the period from the 24th of January, 1955 to the 30th of May, 1957, when they were prosecuting the suit in the court of the Munsif. Mr. Lal Narayan Sinha has challenged this finding of the court below, According to him, a plaintiff is entitled to exclude, under Section 14 of the Act, the time during which he has been prosecuting another civil proceeding, only he is prosecuting the same with due diligence and in good faith. Mr. Sinha has contended that there was complete lack of due diligence and good faith on the part of the plaintiffs in prosecuting the suit before the Munsif. He has submitted that the plaintiffs deliberately did not value the properties of one of the Schedules of the plaint and undervalued the properties of the other to avoid payment of court-fees and in the circumstances cannot be said to have been acting with due diligence and in good faith. He has drawn our attention to the definition of the term "good faith" in Section 2(7) of the Act "nothing shall be deemed to be done in good faith which is not done with due care and attention", and maintained that the plaintiffs are not entitled to exclude the time even up to the 13th of April, 1957, when the endorsement for return of the plaint was signed by the Munsif. He has further submitted that in no case the plaintiffs can be held to be entitled to exclude the time after the 13th of April, 1957, because they can not be said to have acted with due care and attention in not taking back the plaint from the office of the Munsif after the endorsement was signed by him for presenting it before the proper court within a reasonable time. The fact that they did not take any such step and waited till it was returned by the office to their lawyer on the 28th of May, 1957, shows that the plaintiffs were not taking any. care of the case and were not at all attentive to it. According to him, non-presentation of the plaint by the plaintiffs before the Subordinate Judge on the 29th of May, 1957, the date following the return of the plaint to their lawyer, but on the 30th of May, 1957, also shows carelessness and want of attention on their part. He has urged that after the Munsif signed the endorsement for the return of the plaint to the plaintiffs on the 13th of April, 1957, the civil proceeding, i.e., the suit, came to an end so far that court was concerned, and in the eye of law, the plaintiffs cannot be deemed to be prosecuting any such proceeding before any court of law. On the other hand, Mr. Balbhadra Prasad Singh for the plaintiffs-respondents has submitted that in the facts and circumstances of the case, his clients were prosecuting the suit before the Munsif with due diligence and in good faith and were entitled to exclude the time from the 24th of January, 1955 to the 30th of May, 1957, as held by the court below in counting the period of limitation.
6. In support of his contention with regard to the period from the 24th of January, 1955 to the 13th of April, 1957, Mr. Sinha has placed strong reliance on the decision of the Supreme Court in the case of Madhavrao Narayan Rao Patwardhan v. Ram Krishna Govind Bhanu . B.P. Sinha, J. who delivered the judgment of the Court in that case observed-
Both the courts below have viewed the controversy under Section 14 of the Limitation Act, as if it was for the defendant to show mala fide on the part of the plaintiff when he instituted the previous suit and was carrying on the proceedings in that court. In our opinion, both the courts below have misdirected themselves on this question. Though they do not say so in terms, they appear to have applied the definition of 'good faith' as contained in the General Clauses Act, to the affect that "Nothing shall be deemed to be done in good faith where it is in fact done honestly, whether it is done negligently or not". But the Indian Limitation Act contains its own definition of good faith to the effect that 'nothing shall be deemed to be done in good faith which is not done with due care and attention- (Section 2(7). We have, therefore, to see if the institution and prosecution of the suit in the Munsif's court at Miraj was done with due care and attention.
The plaintiff of that case had also instituted another suit in another court in respect of the same property and had valued it, but had not put any valuation on the suit filed in the Munsif's court at Miraj and it was held that there was want of due care and attention on the part of the plaintiff and Section 14 of the Act could not be called in his aid. Emphasising that the burden of proof in such a case lay on the plaintiff the learned Judge further observed-
There is another serious difficulty in the way of the plaintiff. He has not brought on the record of this case any evidence to show that, he was prosecuting the previously instituted suit with 'due diligence' as required by Section 14.
He has not adduced in evidence the order-sheet or some equivalent evidence of the proceedings in the Sub-Judge's court at Miraj, to show that in spite of his due diligence, that the suit remained pending for over ten years in that court, before he thought of having the suit tried by a court of higher pecuniary jurisdiction. In our opinion, therefore, all the conditions necessary to bring the case within Section 14 have not been satisfied by the plaintiff. There could be no doubt about the legal position that the burden lay on the plaintiff to satisfy those conditions in order that he may entitle himself to the deduction of all that period between 31st January, 1929, arid 4th July, 1940. It is also clear that the courts below were in error in expecting the contesting defendant to adduce evidence to the contrary. When the plaintiff, has not satisfied the initial burden which jay upon him to bring his case within Section 14, the burden would not shift, if it ever shifted, to the defendant to show the contrary." Mr. Sinha has also placed reliance on two Bench decisions of this Court, (i) Bibi Sairali v. Mt. Golab Kuer A.I.R. 1919 Pat. 345 and (ii) Ramchandra Singh v. Mt. Bibi Khodaiiatul Kubra A.I.R. 1945 Pat. 369, wherein it was held that where the suit is undervalued or grossly undervalued, time spent in prosecution of it in a court which could not have jurisdiction if the suit had been properly valued, cannot be exempted under Section 14 of the Act. It appears that the valuation of Rs. 1,000/- as stated by the plaintiffs in paragraph 14 of the plaint as it originally stood was not in respect of Schedule II properties as stated, but really was in respect of Schedule I properties. This is manifest from the fact that Schedule I properties were auction-sold for Rs. 2,000/- and the plaintiffs wanted to value their eight annas share in those properties at Rs. 1,000/-. This position has been conceded by learned Counsel for both the parties, but Mr. Sinha has maintained that really that make no difference, inasmuch as, the plaintiffs omitted to value Schedule II properties.
7. Mr. Balbhadra Prasad Singh has contended that where a property is auction-sold and a suit is filed challenging that sale, if the plaintiff puts a valuation according to the price fetched at the auction sale, he can not be said to have deliberately undervalued his plaint and acted without due care and attention. In support of this contention he has relied on a Bench decision of this Court in Vaidyanath Sahay v. Rambadan Singh . In the suit out of which that appeal arose the plaintiff had originally put a valuation of Rs. 188/4/- only at which the property had been auction-sold. Subsequently he himself raised the valuation to Rs. 1,500/- when the plaint was returned to him for presentation before a proper court. The valuation had again to be raised to Rs. 2,680/- as fixed by the court to which the plaint was presented after return. Distinguishing the decision of the Supreme Court, Mahapatra, J. held that the plaintiff was acting in good faith and was entitled to get benefit of Section 14 of the Act. It was not a case where part of the property was not valued at all. Mr. Singh, however, has submitted that there could be no motive in the plaintiff for not valuing one of the Schedules and it was a case of mere omission for whatever might have been the valuation of Schedule II properties, the plaintiffs had to pay only a fixed court-fee for partition in respect of that Schedule which they did pay. It may be that there was no dishonesty on the part of the plaintiffs in not valuing Schadule II properties, but as observed in Madhavrao's case by the Supreme Court, while dealing with Section 14 of the Act, one has to find out whether there was good faith or not as defined in the Act itself and not as defined in the General Clauses Act. Within the meaning of the Genera! Clauses Act the plaintiffs might have acted in good faith in not valuing Schedule II properties, but they can not be said to have acted in good faith as defined in the Act, i.e., with due care and attention in omitting to value the properties of one of the Schedules in dispute.
8. Mr. Sinha's submission, however, in respect of the period after the 13th April, 1957, stands on a much stronger footing. In support of his contention relating to this period he has drawn our attention to an observation of a Bench of this Court in Inderdeo Prasad Ral v. Deonarain Mahton A.I.R. 1946 Pat. 301 that the time that can be excluded-under Section 14(2) is merely the time during which the other proceeding is being actually prosecuted with due diligence. He has also cited before us the decision of the Judicial Committee in Ram Narain Joshi v. Parmeshwar Narain Mahtha I.L.R. 30 Cal. 309. The appeal was filed before the Judicial Committee against an order of the Calcutta High Court rejecting an application under Section 5 of the Act. In that case after the appellant became aware of the fact that his appeal was not within time on 9th of August, 1895, he made no application to the court until the 16th of September of that year. No reasons whatever were given as to why the application could not have been made within a few days of the discovery of the mistake. The High Court refused to condone the delay and the decision was upheld by the Judicial Committee. One of the decisions cited by Mr. Balbhadra Prasad Singh himself, i.e., the case of Neerendrabhooshan Lahiri v. Berhampur Oil Mills, Ltd. A.I.R. 1933 Cal. 914 supports the contention of Mr. Sinha that after the 13th of, April, 1957, when the endorsement was made on the plaint for its return by the Munsif, on the facts and in the circumstances of the case, the plaintiffs cannot be said to be prosecuting any civil proceeding before the Munsif and entitled to any benefit of the provisions of Section 14 of the Act. The head-note which correctly summarises the decision of their Lordships runs as follows :
Where a plaint is ordered to be returned to be presented in the proper Court, the return of the plaint with an endorsement on it is a part of the Court's duty, and until at all events, an endorsement is made and the plaint is ready for return, the proceedings cannot be considered to be at an end. Hence the time between the date of .the order and the date when the plaint is ready for return should be deducted in computing limitation. When that point of time is reached, the question whether the plaintiff would not be entitled to a further deduction of time thereafter would depend upon various factors. Ordinarily no further time would be excluded, But it is not inconceivable that in exceptional circumstances, even subsequent to such point of time, the proceedings may have to be regarded as still continuing, and, in determining whether they should be so regarded or not, the question of the plaintiff's diligence or otherwise may have to be considered.
Mr. Singh has not been able to point out anything on the record to show any diligence on the part of his clients after the 13th of April, 1957. As observed by the Supreme Court in Madhavrao's case, burden lies on the plaintiffs to prove diligence and due care and attention so as to entitle them to the exclusion of the time under Section 14 of the Act in computing the period of limitation. In the circumstances, the proceedings cannot be regarded as continuing after the 13th of April, 1957, and. must be held to have terminated on that date. Time after that cannot be excluded in the facts and circumstances of this case.
9. For the reasons aforesaid, the court below was not correct in calling Section 14 of the Act in aid to the plaintiffs' and holding that their suit in respect of Schedule I properties was not barred by time. In my opinion, the plaintiffs' suit was barred by time so far Schedule I properties are concerned on the date it was presented before the sub-Judge and has to be dismissed.
10. In the result, the appeal succeeds and is allowed with cost and the plaintiffs' suit in respect of Schedule I properties is dismissed. The appellants will be entitled to the cost of the court below proportionate to the plaintiffs' failure.
Anwar Ahmad, J.
11. I agree.