MADHAVRAO NARAYANRAO PATWARDHAN versus RAMKRISHNA GOVIND BHANU AND OTHERS

SnrnA J.-These two appeals are directed against the judgment and decree dated N oveinber 30, 1951, passed• by a, Division Bench of the High Court of Judicature a,t Bombay, 're\rersing thoRc of the District Judge at Mira.;, dismi >sing the plaintiff's suit for p·o ;session and mesne profits in respect of the suit ·properties in Civil i:)uit No. 2 of 1940. Civil Appeal No 287 of 1955, is on behalf of the added respondent No. 7, and the Civil Appea,l No. 288 of 1955, is on behalf of the a,cldecl respondent No. 6-the Sta,te of Bombay which now represents the o~iginal first defendant-the Mira,j State (now merged in the State of Bombay).

p. 565

In the view we have taken, as will presently appear, on the question of limitation, it is not necessary to state in any detail the pleadings of the parties or the merits of the decisions of the courts below. For the purposes of these appeals, it is only necessary to state that the plaintiff-respondent who was the appellant in. the High Court, had instituted a suit on January 31, 1929, the very last clay of limitation, in the lVIunsiff's court at Miraj. This suit was registered as Oi,iginal Suit No. 724 of 1930, in that court. Tlte plaintiff prayed in the plaint for possession and mesne profits in respect of lands at l\falgaon and '£akli, on the ground that the then State of Miraj had wrongfully resumed those lands in 1910, as part of the State Sheri-Khata, which, after inquiry, was ordered on July 31, 1915, to . be recorded such lands~ itnd the usufruct thereof during that period to be appropriated to the Khasgi- ](hata of the State. The plaintiff impleatled the State of Miraj as the first defendant. Defendants 2 and are plaintiff's brothers who are said to have relinquished their interest in the suit properties in favour of the plaintiff. Defendants 4 to 7 belong to, the family Xarso who was, until his death in 1910, recorded respect of the suit properties, but they did not appear and contest the plaintiff's claim. The suit was valued at Rs. 2,065, being 5 times the assessment on the disputed lands for the purposes of court-fee . .No valuation was given in the plaint for the purposes of jurisdiction with reference to the value of the properties claimed. A similar suit had been instituted bv the plaintiff in the same court in respect of lands another village called Tikoni. That had been ~egistered as Original Suit l\o. 443 of 1928, in the Munsiff's eourt at Miraj, and we shall refer to that suit as the 'Tikoni suit'. It appears that the two suits proceeded in that court in a very leisurely fashion until November 29, 1939, when the Tikoni suit was dismissed. After the dismissal of that suit, the plaintiff made an application on ,Tune 21, 1940, drawing the attention of the court to the fact that the value of the subject-matter of the suit had not been mentioned in the plaint, and that, on a moderate valuation, the disputed land should not be worth " less than a minimum of 8 to thousand rupees ", and that, therefore, the court had no pecuniary jurisdiction to hear the suit. The court allowed the application and directed the plaint to returned to be presented to the proper court, on July 1940. The plaint was accordingly re-presented on that very date to the court of District Judge at Miraj, and the same was llllmbered as Suit No. 2 of 1940.

pp. 565–566

The original first defendant only contested the s11it on a number o.f grounds, including the plea of limitation. By a petition dated October 27, 1942, the defendant brought it to the notice of the court that the "plaintiff despite his knowledge that the value of the subject-matter of the suit was far in excestl' of the amount of jurisdiction of the Munsiff's court filed the ~uit in the ~aid court. .l'he ea.id a.ct of the plaintifi was not at all 'bona fide ' ...... The facilities as regards limitations, etc. which a 'bona fide' suitor would be entitled to cannot, therefore, be afforded to the plaintiff. "

pp. 566–567

After recording evidence and hearing the parties, the learned District Judge, by his judgment and decree dated December 12, 1945, dismissed the suit with costs. On• appeal by the defeated plaintiff, during the pendency of the appeal, the State of Bombay was added as the 6th respondent, and the Yuvaraj 'of Miraj, Madhavrao Narayanrao, son of the Raja Sahib of Miraj, was added as the 7th respondent, as ~he latter had acquired an interest in the disputed properties by virtue of a grant in his favour. The appeal was· ultimately registered as First Appeal No. 104 of 1950, }n the High Court of Bombay. A Division Bench of that Court, by its judgment and decree dated November 30, 1951, allowed the appeal and decreed the suit with costs against the first and the 7th respondents. The respondents 6 and 7 aforesaid applied for and obtained the necessary certificate for coming up in appeal to this Court. Hence, these two appeals.

p. 567

We have heard the counsel for the parties at a great length on the preliminary issue of limitation. On behalf of the appellants, it was urged with reference to the plea of limitation that in the facts and circumstances of this case, the plaintiff is not entitled to the benefit of s. 14 of the Limitation Act, and that, therefore, the suit as instituted in the court of the District Judge at Miraj on re-presentation of the plaint in that court on July 4, 1940, was barred by limitation. Alternatively, it was argued that even assuming that the courts below were right in giving the plaintiff the benefit of that section, the suit was barred by limitation of 12 years under Art. 142 of the Li111itation Act, whether the cause of action arose in 1910, on the death of Narso aforesaid, or in 1915, when the final order was passed by the Miraj State treating the resumed property as part of the Khas property of the State, which ·was the date of the cause of action for the suit

p. 567

as alleged in the plaint. On behalf of the plaintiff- ~ respondent, it was strenuou~ly argued ~hat the' c~ur.ts below were right in holding that the plaintiff was entitled to a deduction of all the time January 31, 1929, when the suit had been filed in the court of the Munsiff at Miraj, and 1940, when the plaint was returned and re-presented as aforesaid. It was also argued that it was common ground that the suit as originally filed on January. 1929, was withjn time though that was the limitation. If !ho plaintiff is given the benefit of the Limitation Act, facto, t,hc suit presentation of the plaint in the District Miraj, would be within time.

pp. 567–568

In our opinion, the appellant's contentions the provisions of s. 14 of the Limitation well-founded, and the decision of the courts below, granting the plaintiff-respondent the benefit section, must be reversed for the following rmisons: J3efore the promulgation, on January l, 1926, Proclamation by State Karabhari, Miraj law of limitation in that State, it is common was that tho plaintiff had the benefit of the 20 years as the period during which possession after dispossession, could he instituted. that Proclamation, the Indian Limitation 1908) was made applicable to that State from February 1, 1926, subject to this modification :tll suits which would lmve been in time according old law of the Stf1tc, but would have become limitation as a result of the introduction of Limitation Act, could be filed up to January .hy virtue of certain notifications extending the for the institution of such snits. H once, the that date in the :i\fonsiff'sCourt,tt Miraj, was within time, and was subject to the Ltw of under the Jl1dian Limitatilll;i Act. '~Then the returned by the .Mnnsiff's c~urt at Miraj, instance of the plaintiff himself on the want of pecuniary jurisdiction, and re-presented the court of the District Judge at Miraj 1940, it was, on the face of it, barred by whether the period of limitation started l~l~ or 1915, 1mless the c,ase is brought within of the Limitation Act. Sub-section (1) of s. 14 of the Limitation Act, which admittedly governs the present case, is in these terms:-

pp. 568–569

" (1). In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence a_nother 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." In order to bring his case within the section quoted above, the plaintiff has to show affirmatively:

p. 569

•(I) that he had been prosecuting with due diligence the previous suit in the court of the Munsif at Miraj, .

p. 569

(2) that the previous suit was founded upon the same cause of action,

p. 569

(3) that it had been prosecuted in good faith in that court, and

p. 569

(4) that that court was unable to entertain that suit on account of defect of jurisdiction or other cause of a like nature. There is no dispute between the parties here that conditions (2) and (4) are 13atisfied. But the parties differ with reference to th'e first and the third conditions. It has been argued on behalf of the appellants that the courts below had misdirected themselves when they observed that there was no proof that the plaintiff had not been diligently prosecuting the previously instituted suit, or that it was i10t being prosecuted in good faith; that the section requires that the plaintiff must . affirmatively show that the previously instituted· suit was being prosecuted in good faith and with due diligence ; and that, viewed in that light, the plaintiff has failed to satisfy those oon<iitions.

p. 569

The conclusion of the learned trial judge on this part of 'the case, is in these words :- " The plaintiff's m(!(la fides are therefore • not established and the period occupied in prosecuting the former suit must be excluded under section 14 of the Limit11tion Act." The observations of the High Court are as follows :-

pp. 569–570

" W' e do not see our way to accuse the plaintiff of want of good faith or any maW. fides in the matter of the filing of the suit in the Subordinate Judge's Court at Miraj. There is nothing on the record to show that he wtts really guilty of want of good faith or non-prosecution of the suit with due diligence in the Court of the Subordinate Judge at Miraj." Both the courts below have viewed the controversy under s. 14 of the Limitation Act, as if it was for the defendant to show mala fides on the part of the plaintiff when he instituted the previous suit and was carrying on the proceedings in th11t court. In our opinion, both the courts below h11ve misdirected themselves on this question. Though they do not s11y so in terms, they appear to have applied the definition of "good faith" as contained in the General Clauses Act, to the effect that " A thing shall be deemed to be done in good faith where it is in fact done honestly, whether it is clone negligently or not." But the Indian Limitation Act contains its own definition of good faith to the effect that "nothing shall be <;leemecl to be done in good faith whivh is not clone with due c1ue and att.ention "-(s. 2(7)). 'Ve have, therefore, to see if the institution and .Prosecution of the suit in the Munsiff's court at Miraj, was done with due care and n,ttention. 'Ve know that the plaint in the Tikoni suit filed by the stttne plaintiff .in the same court, did contain a statement as to the value of the subject-matter, but it was conspiuuO'lls by its absence in the plaint in the suit as originally filed in the nfonsiff's court at Miraj. All the facts alleged in the plaintiff's petition for the return of the plaint, were known to the plaintiff ever since the institution of the snit. Nothing fresh was discovered in 1940. On the other hand, we know definitely that the Tikoni snit had been dismissed bv the trial comt 911 merits. The suits were of an analogous charicter in the sense that the controversv was similar in both of them. The appellant's .con"tention that on the dismissal of the plaintiff's Tikoni suit in November, 1939, he, naturally, became apprehensive about result of the other suit, and then moved the court the return of the plaint on the ground of pecuniary jurisdictie1tl, appears to be well-founded. The plaintiff knew all the time that the value of the properties involved in the suit, was much more than Rs. 5,000 ~v hich was the limit of the pecuniary jurisdiction the Subordinate Judge's court. Can an omission the plaint to mention the value of the properties involved in the suit, be brought within the condition of 'due care and attention' according to the meaning " good faith " as understood in the Limitation It has to be remembered that it is not one of cases which usually arise upon a revision of the tioJJ. as given in the plaint, an objection raised the defendant contesting the jurisdiction of the to entertain the suit. Curiously enough, the defendant had not raised any objection in his written statement to the jurisdiction of the court to entertain the Apparently, the plaintiff was hard put to it to discover reasons for having the case transferred to another court. The question is not whether the plaintiff did dishonestly or that his acts or omission in this tion, were rnala fide. On the other hand, the question is whether, given due care and attention, the plaintiff could have discovered the omission without having wait for abont 10 years or more. The trial examined the plaintiff's allegation that the omission was due to his pleader's mistake. As that observed "he makes this contention with a view shield himself behind a wrong legal advice." court has answ~red the plaintiff's contention him by observing that the plaintiff was not guided any legal advice in this suit;· that .the plaint entirely written by him in both the f!uits, and that himself conducted those suits in the trial court mannei· worthy of a senior counseL" The therefore, rightly came to the conclusion that platntiff himself was responsible for drafting plaint and for presenting it in court, and that pleader had any respoi;isibility in. the -matter, reason was adduced why, in those circumstances, value of the subject-matter of the suit, was mentioned in the plaint in the Tikoni suit but not in the respect of the present suit.

pp. 570–572

There is another serious difficulty in the Yl'ay plaintiff. He has not brought on the record of case any evidence to show that he was prosecuting .previously i1rntituted suit with "due diligence"

p. 572

uired by s. 14. He has not adduced in evidence order-sheet or some equivalent evidence of the ings in the Sub-Judge's court at Miraj, to show tlrnt in spite of his due diligence, the suit remained for over ten years in that court, before he thought having the suit tried by a court of higher jurisdiction. [n our opinion, therefore, all tions necessary to bring the case within s. 14, been satisfied by the plaintiff. There could be no doubt about the legal position that the burden the plaintiff to satisfy those conditions in he may entitle himself to the deduction of period between January 31, 1929 and July It. is also clear that the courts below were in expecting the conte"ting defendant to adduce evidence to the contrary. \Vhen the plaintiff has not the initial burden which lay upon him to case within s. 14, the burden ·would not shift, shifted, to the defendant to show the contrary. view of this conclusion, it is not necessary for us pronounce upon the other contention raised on of the appellants that, even after giving the benefit of s. l4, the suit is still barred under Art. 142 of tation Ac·t. This is a serious question which to be determined if and when it becomes neeessarv.

p. 572

For the aforesaid reasons, it must be held snit is barred by limitation. The appeals are, accordingly, allowed a.nd the suit dismissed with throughout. One set to be divided equally the two appeals.

p. 572

Appeals allowed.•

p. 572