C.V. Venkataramana Iyengar Dharmasthapanam by Managing Trustee, Dr. C.A. Vijayaraghavan vs P.N. Rangaswami Naidu

A. Alagiriswami, J.—The plaintiff in O.S. No. 57 of 1959 on the file of the Subordinate Judge''s Court, Coimbatore, is the appellant. The

plaintiff filed the suit, out of which the present appeal arises, for the recovery of a sum of Rs. 6,893-75, made up of Rs. 6,750 being arrears of rent

for three years from 15th April, 1953 to 15th April, 1956 and Rs. 143-75 being the damages for use and occupation from 15th April, 1956 to 8th

August, 1956.

The facts necessary for decision in this case are the following. The defendant took on lease the lands belonging to the plaintiff on 15th April,

1958, on a rent of Rs. 2,250 per annum. The plaintiff filed a suit O.S. No. 48 of 1954, on 26th November, 1953, on the file of the Subordinate

Judge''s Court, Coimbatore alleging that the defendant has failed to pay on nth October, 1953, the half-yearly rental of Rs. 1,125 and thereby

forfeited the lease and claiming possession and mesne profits upto the date of possession. The suit was transferred to the Court of the District

Munsif, Coimbatore and renumbered as O.S. No. 714 of 1956. The suit was decreed on 31st August, 1956. The defendant took the matter on

appeal to the District Judge, Coimbatore, who held that the suit Was premature and dismissed it. It must be mentioned that by the time the suit

Was decreed, the plaintiff had taken possession of the properties on 8th May, 1956. In the result, the plaintiff got a decree in the trial Court for the

sum which is claimed in the present suit. But, as mentioned earlier, the appeal was allowed and the suit was dismissed on 18th March, 1958.

Thereafter the plaintiff filed the suit out of which the present appeal arises. The defendant raised many contentions, all of which are not necessary

for the purposes of this appeal to be referred to. The main contention of the defendant was that the suit was barred by limitation. The trial Court

decreed the suit, but on appeal the learned District Judge of Coimbatore, held that the claim for arrears for the period 1952-54 and 1954-55 was

barred by limitation. It is against this judgment that the present appeal has been filed.

The only question that arises for decision in this case, is, therefore, the question of limitation. Before the Courts below the plaintiff seems to have

relied upon Section 14 of the Limitation Act for the purpose of saving limitation. The learned Subordinate Judge who tried the suit held that Section

14 of the Limitation Act would not apply to the facts of the case but, relying on the decisions in Mst. Raneesorna Moyee v. Shooshee Mokhee

Burmonia (1867) 12 M.I.A. 244, and Muthuveerappa Chetty alias Vellayappa Chetty Vs. Adaikappa Chetty and Others, , he held that the suit

was in time. In this Court, the appellant does not rely upon Section 14 of the Limitation Act, but relies upon the two decisions mentioned above as

well as the decisions in Lakhan Chunder Sen v. Madhusudhan Chandra Sen ILR (1908) Cal. 209, and Nrityomani Dassi v. Lakhan Chunder Sen

ILR 43 Cal. 660 : (1916) 30 M.L.J. 529. I do not think that the appellant can be prevented from trying to support his plea that the suit is not

barred by limitation on a new ground because it is well-established that as long as all the facts necessary for a decision of the question are before

the Court, it is open to the Court to consider the question that arises on those facts.

The facts mentioned above would clearly show that the plaintiff had in the earlier suit claimed the Very amounts which have been claimed in the

present suit in respect of the very same land against the very same defendant and he had also got the relief he asked for. The only reason for the

dismissal of the earlier suit was that it was premature. It is contended on behalf of the respondent that there was nothing to prevent the plaintiff from

filing a suit for arrears of rent even while the previous suit was pending. The present suit was filed on 3rd April, 1959, soon after the dismissal of

the earlier suit by the appeal being allowed on 18th March, 1958. To expect the plaintiff to file a suit for the very same sum due to him on the very

same cause of action when he had got a decree for that sum is to take a very technical and unrealistic view. The plaintiff had got the relief which he

wanted and there is no point in saying that he should file another suit for the same relief when he had a decree in his favour for the same relief.

The defendant respondent pointed to Section 9 of the Limitation Act and contended that the period of limitation never stops running once it has

begun to run and, as the rent for the year 1953-54 was payable on 15th April, 1954 and the rent due for 1954-55 was payable on 15th April,

1955, the claim in respect of both the amounts was clearly barred on 3rd April, 1959 when the present suit was filed. The plaintiff, having filed the

earlier suit on 26th November, 1953, and got a decree for the very sum now claimed on 31st August, 1956 which decree Was set aside on 18th

March, 1958, could not have filed any suit between the period 26th November, 1953 and 18th March, 1958. In any case, he could not have filed

a suit between 31st August, 1956 the date on which he obtained a decree in his favour in O.S. No. 714 of 1956, and 18th March, 1958, the date

on which that decree was set aside. Thus, during a period of at least one year and seven months the plaintiff could not have filed a suit. It is not

necessary for the plaintiff to depend upon Ordinance V of 1953, which came into force on 5th December, 1953, Act V of 1954, which came into

effect on 5th February, 1954 and Act I of 1955 the combined effect of all the three of which was that no suit could be filed against an agriculturist

from 5th December, 1953 to 1st July, 1955. The combined effect of these three enactments was that a period of one year, six months and twenty

days will have to be excluded in computing the period of limitation. But where, as in this case, the rent due for 1953-54 was payable only on 15th

April, 1955, it is not the whole period of one year, six months and twenty six days that can be excluded, but only one year, two months and fifteen

days in respect of the rent for the year 1953-54 and a period of two months and fifteen days in respect of the rent for the year 1954-55 that could

be excluded. Even if these periods are excluded in computing the period of limitation, the suit will be out of time. Therefore, the only question is

whether the fact, that the plaintiff had earlier filed a suit for the very same relief and got a decree which was later set aside, would help him to claim

that new period of limitation should be calculated from the date on which the earlier decree was set aside. I think he can.

I have already mentioned that to expect the plaintiff who had got the relief that he wanted in the earlier suit, to file a suit for the very same relief

when there was a decree in his favour, would be unrealistic and unreasonable.

In Nrityamoni Dassi v. Lakhan Chunder Sen1, the facts were as follows : In 1872 one Guru Charan Sen died intestate leaving a widow and

three sons, B.M.M.M. and C.L.C.L. died in 1881. On 18th January, 1892 M.M. and the sons of C.L. were dispossessed of their share in certain

property. In 1896 the sons of C.L. instituted a suit against B.M. and M.M. for possession and account and in 1897, on the death of B.M. and

M.M. their sons were brought on record. The sons of M.M. supported the sons of C.L. and an issue Was raised as between the co-defendants as

to whether the sons of M.M. were entitled to a certain share. A decree dated 20th April, 1903, was passed in favour of the plaintiff and it was

further declared that the defendants, the sons of M.M. were entitled to the share they claimed. The sons of B.M. appealed. On 22nd February,

1904, the appeal Court confirmed the decree in favour of the plaintiffs and set aside the decree so far as it related to the sons of M.M. Thereupon

on I4th, November, 1904 the sons of M.M. instituted suit against the sons of C.L. and B.M. for possession, partition and accounts. Their

Lordships of the Privy Council after discussing the facts, observed in Nrityamoni Dassi v. Lakhan Chunder Sen 30 M.L.J. 529 : ILR (1916) Cal.

660 as follows:

It was an effective decree made by a competent Court and was capable of being enforced until set aside. Admittedly, if the period during which

the plaintiffs were litigating for their rights is deducted, their present suit is in time. Their Lordships are of opinion that the plea of limitation was

rightly overruled by the High Court.

This would show that, applying the same principle, the period between 26th November, 1953, the date on which the previous suit was filed, and

18th March, 1958, the date on which the decree in that suit was set aside, could be excluded in calculating the period of limitation. Whether it is to

be on the ground of exclusion of the period of time taken in the earlier suit for the same relief, or on the ground that while the plaintiff had a decree

in his favour for the very same relief, the cause of action is suspended and is revived again when the previous decree is set aside and the plaintiff in

this case would be entitled to have the period occupied in the previous litigation excluded.

Muthuveerappa Chetty alias Vellayappa Chetty Vs. Adaikappa Chetty and Others, , was a case of dispute between a principal and his agent.

The principal launched a criminal prosecution against the agent and in arbitration between the parties it was decided that the agent should pay the

principal Rs. 10,000 in full satisfaction of the principal''s claims. The agent paid Rs. 7,000 and gave a hundi for the balance of Rs. 3,000.

Thereafter the agent refused to pay the amount due on the hundi and also filed a suit for recovery of the sum of Rs. 7,000 which he had already

paid, on the ground that it had been obtained by coercion. He succeeded in both. Subsequently, the principal instituted a suit for rendition of

accounts. The defendant''s contention that the suit was barred by limitation Was overruled. The High Court, following the decision of the Privy

Council in Mst. Ranee Surno Moyee v. Shooshee Mokhee Bhumonia (1867) 12 M.I.A. 244, held that the suit was in time on the ground that the

annulment of satisfaction in the prior suit gave to the creditor a fresh cause of action upon the original claim and that the time began to run from the

date of annulment.

The learned Subordinate Judge, who tried the suit, has also referred to the facts in Mst. Ranee Surno Moyee v. Shooshee Mokhee Bhumonia

(1867) 12 M.I.A. 244, as Well as the facts in Muthuveerappa Chetty alias Vellayappa Chetty Vs. Adaikappa Chetty and Others, . Those cases

as well as the case in Nrityamoni Dassi v. Lakhan Chunder Sen (1916) 30 M.L.J 529 : (1916) ILR 43 Cal. 660 (P.C.), already referred to, are

ample authority for the proposition that in a case like this the plaintiff can successfully claim that the time spent in the earlier litigation should be

excluded in calculating the period of limitation for the present suit. The learned trial Judge was also right in coming to the conclusion that the

decision in Huro Pershad Roy v. Gopal Das Dutt ILR (1883) 9 Cal. 255, and W. Sheriff v. Dianath Mukherjee ILR (1886) Cal. 258, did not

apply to the facts of the present case. In both those caes the earlier suit was for possession and the subsequent suit was for rent. Naturally, the time

taken in prosecuting the suit for possession cannot be excluded in computing the period of limitation for a suit for rent in respect of the same lands.

In the present case, however, the suit was on the basis of mesne profits and in the present suit on the basis of rent due.

In this Court the respondent also relied upon the decision of the Full Bench of this Court in Vadlamannati Bala Tripura Sundaramma alias

Suiadaramma Vs. Abdul Khadar, . In that case a mortgagee-decree holder filed an execution application for sale of the mortgaged properties on

2nd October, 1922. It was dismissed on 16th January, 1923. Meanwhile, third persons filed a suit against both the mortgagor and the mortgagee

alleging that the mortgaged properties belonged to a public religious endowment and were as such inalienable and sought for a declaration from the

Court to such an effect. That suit was decreed a day previous to the dismissal of the execution application. But on appeal the High Court reversed

the decision of the lower Court and dismissed the collateral suit on 16th August, 1927. The mortgagee-decree holder put in another execution

application after the termination of the said appeal on 23rd September, 1927, but it was dismissed as time-barred. On the question whether the

decree in the collateral litigation would be tantamount to an injunction staying the execution proceedings and whether the fresh application filed after

three years would be taken to revive or continue the original application for execution filed by the decreeholder it was held that in order to make

the provisions of Section 15 of the Limitation Act apply to the case, it must be shown that a suit or application for execution of the decree had

been stayed by an injunction or order and that if the decreeholder could not bring herself within the exemptions provided for in the Act, she could

not escape the bar of limitation by pleading in equity an implied order or a collateral litigation which Would render her proceedings futile. Now, the

decision in that case cannot help the respondent, because that was concerned with a collateral litigation and the provision of law taken into

consideration was Section 15 of the limitation Act. We are not now concerned with Section 15 nor are we concerned with a collateral litigation

because of which the plaintiff refrained from filing a suit in time. The plaintiff in this case refrained from filing a suit because in the earlier suit he had

asked for the Very same relief for which he has now sued and that suit was dismissed on the ground that it was premature. Therefore, on the

dismissal of the earlier suit, his cause of action which had merged in the decree in that suit, revived and a fresh cause of action arose on the day on

which the previous suit was dismissed on 18th March, 1958. I am of opinion, therefore, that the trial Judge was right in decreeing the suit and that

the reversal of that decree by the learned District Judge was not justified. The appeal is, therefore, allowed and the decree of the trial Judge will be

restored. The respondent will pay the costs of the appellant throughout. Leave granted.