Hussan Bhat vs Haji Mohamed Sultan Bhat

J.N. Wazir, C.J.—This is a revision application directed against an order of the Special Sub-Judge (Judge Small Causes) Srinagar. holding

that the suit was within time.

A preliminary objection is taken by the Respondent that the revision application is not maintainable inasmuch as the Petitioner has another

remedy by way of appeal open to him if the suit is decreed against him. The learned Counsel for the Petitioner argued in reply that if the revision is

allowed and the suit is held to be barred by limitation his client will be saved from unnecessary expense and inconvenience of defending the suit in

the trial Court. Although in a Full Bench decision of this Court, 1 J& K LR 26, Rasul Makru v. Des Raj it has been held that revision against an

interlocutory order passed by the Court on the point of limitation is not maintainable yet 1 have heard the revision application on merits and I am of

the opinion that there is no substance in this revision application and it must fail.

The facts out of which this revision application has arisen, briefly stated, are these:

The Plaintiff brought a suit in the Court of City Judge, Srinagar, for the recovery of Rs. 1,450 against the Defendant on the basis of a document

dated 22nd of December, 1955. It was alleged that Rs. 1,700 were advanced to the Defendant in cash. The Defendant paid Rs. 250 and the

balance remained due. Hence the suit. In the trial Court of City Judge the Defendant pleaded that he was an agriculturist. An enquiry was held by

the trial Court whether the Defendant was an agriculturist or not. In the course of the enquiry the Plaintiff admitted the Defendant to be an

agriculturist and prayed that the plaint be returned to him for presentation to the proper forum. The trial Judge on 20th June, 1962 ordered the

plaint to be returned to the Plaintiff.

The plaint was returned to the Plaintiff on 26th June, 1962 and it was filed on the same day in the Court of Special Sub Judge (Judge Small

Causes) Srinagar. An objection was taken in the written statement by the Defendant that the suit was barred by time inasmuch as the suit document

was executed on 22nd December, 1966 and the plaint was presented in the Court of Special Sub-Judge on 26-6-1962 after the lapse of more

than six years. The trial Court of Special Sub Judge allowed the benefit of Section 14 of the Limitation Act and excluded the time taken in

prosecuting the suit in the Court of City Judge, i.e., from the date of the institution of the audit in that Court till the 96th of June, 1962, the date

when the plaint was returned to the Plaintiff for presentation to the proper forum. The suit was held to be within time.

In this revision application the learned Counsel for the Petitioner has argued that the Plaintiff had in fact applied for withdrawal of the suit from

the Court of City Judge and the order passed by the City Judge returning the plaint for presentation to the proper forum should be taken to be an

order passed under Order 23, Rule 1 and not under Order 7, Rule 10, CPC On perusal of the order of the City Judge it is abundantly clear that

the order was not under Order 23, Rule 1, CPC but the plaint was returned by the trial Court under Order 7, Rule 10, CPC for presentation to

the proper forum.

If the Plaintiff had not admitted the status of the Defendant to be that of an agriculturist and after the enquiry the trial Court had found that the

Defendant was an agriculturist the only order that the Court would have passed would have been to return the plaint to the Plaintiff for presentation

to the proper forum. The Plaintiff in order to avoid delay admitted the Defendant to be an agriculturist and prayed that the plaint be returned to him

for presentation to the proper forum. His prayer was acceded to by the trial Court of City Judge and the plaint was ordered to be returned for

presentation to the proper forum. The order passed by the Court clearly indicates that it was passed under Order 7, Rule 10 and not under Order

23, Rule 1, Code of Civil Procedure.

It was further argued on behalf of the Petitioner that the Plaintiff was entitled to the exclusion of the period spent in the wrong forum from the

date of the institution of the suit in the Court of City Judge to the date of the termination of the proceedings in that Court. According to the learned

Counsel for the Petitioner the proceedings in the Court of City Judge terminated on the date when the order was passed returning the plaint for

presentation to the proper forum, i.e., on 20th June, 1962. The question for consideration is whether the period spent in prosecuting the suit in the

wrong forum should be computed up to the 20th of June, 1962, when the order was passed for returning the plaint, or up to the 26th of June,

1962 when the plaint was actually returned to the Plaintiff for presentation to the proper forum.

It is true that the trial Court of City Judge ordered on the 20th of June, 1962 that the plaint be returned but under Order 7, Rule 10(2), CPC the

Judge has to make an endorsement on the plaint giving the date of its presentation and return, the name of the party presenting it and a brief

statement of the reasons for returning it. The mere passing of the order by the trial Judge that the plaint be returned for presentation to the proper

forum does not show that the necessary endorsement as required under Sub-rule (2) of Rule 10 of Order 7, CPC was made on that very date.

The plaint in fact was returned to the Plaintiff on the 26th of June, 1962 and on that very date the Plaintiff filed it in the Court of Special Sub Judge

when was the proper forum.

The proceedings therefore in the wrong Court terminated not on the 20th of June, 1962 when the order was passed by the City Judge for return of

the plaint but on the 25th of June, 1962 when the plaint was actually returned to the Plaintiff, In this view 1 am supported by an authority of the

Allahabad High Court, Jafar Uddin Vs. Debi Prasad and Another, in which it is held

The Court has seizing of the plaint up till it is actually returned to the Plaintiff even after the order directing the return of the plaint has been passed.

Hence, proceedings come lo an end within the meaning of Section 14 of the Act not on the date on which the order directing the return of the plaint

is recorded but on the date on which the plaint is actually returned to the Plaintiff.

The same view has been taken in Basava nappa v. Krishnadas, AIR 1921 Bom 379 where in it has been observed

When a party is ordered to take back his plaint and present it in the proper Court, the proceedings do not end until the party gets back his plain

In Nagindas Kapurchand v. Maganlal Panaehand, AIR 1922 Bom 160 a Division Bench of Bombay High Court has held as follows:

The Plaintiff filed a suit in a Court without jurisdiction and his plaint was ordered to be returned for presentation to the proper Court but was

actually returned after five days after the order on which day it was presented to the proper Court which dismissed it on the ground of being

without the period of limitation.

Held, the five days of delay must be excluded in computing the period of limitation.

For the reasons given above the trial Court of Special Sub Judge has rightly held that the suit is within time. This revision application is,

therefore, dismissed with costs.