Brijlal Geinka and others vs Janendra Narain Chaudhari Bahadur and others

James, J.—This is a second appeal from the decision of the District Judge of the Santal Parganas confirming the decision of the Subordinate Judge of Rajmahal decreeing the plaintiffs'' suit for arrears of rent. The plaintiffs originally instituted a suit in the Court of the Subordinate Judge while the area was under settlement. The defendants in that suit took the objection that the suit should have been filed in the Court of the Settlement Officer; but the objection was overruled by the Subordinate Judge who decreed the suit. On appeal the District Judge dismissed the suit on the ground that it ought to have been instituted in the Court of the Settlement Officer and that the Subordinate Judge had no jurisdiction. The plaintiffs then statute another suit in the Court of the Subordinate Judge who by that time had jurisdiction to entertain it, since the settlement was completed. The defendants objected that the suit was barred by limitation; but the learned Subordinate Judge applied the provisions of S. 14, Limitation Act, holding that the plaintiff''s were entitled to exclude the time during which they had been prosecuting with due diligence their suit in good faith in a Court which from defect of jurisdiction was unable to entertain it.

It is argued on behalf of the defendants-appellants that since the objection to jurisdiction was taken by the defendants in the earlier suit in the Court of the Subordinate Judge, the plaintiffs cannot be considered to have been prosecuting their suit in good faith in that Court. The learned Subordinate Judge, misunderstanding the effect of R. 27 of the old Settlement Rules, thought that rent suits instituted in his Court were excluded from the category of suits which must he instituted in the Court of the Settlement Officer during the pendency of settlement proceedings. It appears that the rule to which the learned Subordinate Judge refers applied only to suits instituted in the Santal Courts but there was some ambiguity in its form; and we have recently had before us in this Court other instances in which the rule has been interpreted by the Settlement Officer in the same manner as it was interpreted by the Subordinate Judge in the previous suit. It certainly cannot be argued that the plaintiffs could not have believed in good faith that their suit should be instituted in the Court of the Subordinate Judge when this was the view taken by the Subordinate fudge himself; and the Courts below have rightly held that this is a case which properly falls within the provision of S. 14, Limitation Act.

It is argued in the second place that, the dismissal of the former suit by the District Judge in some way bars the institution of a fresh suit; and that if advantage was to be taken of the provisions of S. 14, Limitation Act, it was necessary that the original plaint should be returned to the plaintiff by the District Judge for presentation to the proper Court S. 14, Limitation Act, 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 exclude ed; and the plaintiff is entitled to claim the benefit of this provision whether he conies up on the second occasion with the original plaint or with a new plaint. The order of dismissal by the District Judge in the former suit was not a disposal of the suit on the merits; it was merely a refusal of relief which from the defect of jurisdiction he was unable to give; and the order of dismissal by a Court which had no jurisdiction to entertain the suit cannot operate as a bar to a second suit instituted before a Court having jurisdiction.

I would dismiss this appeal with costs.

Macpherson, J.

I agree.