Mohamed Sali vs Mary Gonrath Fernando and Others

Maharajan, J.—An interesting question of law arises in this Letters Patent appeal, which is directed against a second appellate judgment of

this court, and it arises under the following circumstances.

The plaintiff, who is the respondent in this appeal, instituted a suit in the court of the District Munsif, Tuticorin, for the recovery of moneys due

under a promissory note executed by the defendant, who was a resident of Nagarcoil. The plaintiff alleged that the promissory note was executed

at Tuticorin and that consequently the cause of action had arisen within the territorial limits of the Tuticorin court. The suit itself was instituted on the

last day of limitation. The defendant appeared in the Tuticorin of which was that inasmuch as the promissory note had been executed at Nagarcoil

and not at Tuticorin and he himself was residing at Nagarcoil, no part of the cause of action had arisen within the territorial limits of the Tuticorin

court. As many as 7 issues were framed upon the pleadings and issue No. 3 related to the territorial jurisdiction of the Tuticorin court. But, before

the trial commenced, that is to say, on 28-7-1959, the plaintiff''s agent made an endorsement on the plaint to the following effect--

Plaintiff prays that the plaint may be returned for presentation to the Nagarcoil court where the defendant resides"".

Without going into the question of jurisdiction on the merits the Tuticorin court accepted this request of the plaintiff and passed an order in the

following terms:

Today an endorsement has been made in the plaint. Further it is seen that the defendant resides at Nagarcoil area and the entire cause of action

arose at Nagarcoil. Plaint is returned for presentation to the proper forum. If the plaint is not represented within the transit period allowed under

law, the defendant would be entitled to claim his cause from the plaintiff. Plaint is returned. If represented within time, costs to abide by the result of

the suit.

The plaint was actually returned to the plaintiff on 6th August, 1959. The plaintiff presented this plaint in the Nagarcoil court on 19th August,

1959 along with a fresh plaint. The Nagarcoil court entertained both the plaints, treated the court fee paid on the earlier plaint as court-fee due on

the fresh plaint and proceeded with the trial after issuing summons to the defendant, giving an opportunity to the defendant to file an answer,

framing issues, recording evidence and ultimately, holding that inasmuch as the plaint had been presented in the Nagarcoil court long after the

expiry of the period of limitation, the suit was barred by time. The first appellate Court reversed this judgment and granted a decree in favour of the

plaintiff. In the second appeal, the judgment of the first Appellate Court was upheld, and against that judgment, the present Letters Patent Appeal

has been filed by the defendant.

The question arises whether the plaint returned by the Tuticorin court for presentation to the proper court should be regarded as a continuation

of the plaint presented in the Nagarcoil court. If it is so regarded, no question of limitation would arise. If, on the other hand, the plaint presented in

the Nagarcoil court is to be treated as a fresh plaint, the suit must be held barred by limitation because on the date of presentation of the plaint in

the Nagarcoil court, the period of limitation had expired.

Before dealing with this question, it is right to point out that all the three courts, concurrently, held that the promissory note was executed at

Tuticorin. This is a finding of fact which is binding upon the appellant herein. It would then follow that the return by the Tuticorin court of the plaint

was made on the erroneous basis that that court had no jurisdiction to entertain the suit. It is true that as the defendant resided within the territorial

limits of the Nagarcoil court, the suit could be filed in the Nagarcoil court as well. The resulting position is that both the Tuticorin court and the

Nagarcoil court had jurisdiction to entertain the suit instituted by the plaintiff. The Tuticorin court did not record evidence as to the exact place

where the promissory note was executed. Had it done so, it would have, like the Nagarcoil court, arrived at the conclusion, that the promissory

note had been executed at Tuticorin, in which case the Tuticorin court would have refrained from returning the plaint. Under Order 7, Rule 10,

C.P.C.--

(1) the plaint shall at any stage of the suit be returned to be presented to the court in which the suit should have been instituted.........

In this case, as it transpires from the finding of the Nagarcoil court, the promissory note was executed at Tuticorin. Therefore, the Tuticorin court

had jurisdiction, equally with the Nagarcoil court, to entertain the suit. The Tuticorin court acted in violation of Order 7, Rule 10. C.P.C., when it

returned the plaint although it had jurisdiction. The order being an illegal order and the plaint having been presented within time in a court having

jurisdiction, we think that the crucial date for purposes of limitation is the date on which the plaint was presented in the Tuticorin court and not the

date, on which it was represented in the Nagarcoil court. We find support for this view in the ruling of the Lahore High Court, viz., Amarnath v.

Hakim Rai, AIR 1929 Lah 248, where a Division Bench of that court had held as follows: (at page 249):--

The main contention of the learned counsel for the appellant is that the Junior Subordinate Judge''s order under Order 7, Rule 10, C.P.C. and that

when the plaint is returned under that rule and presented to a competent court the suit must be taken to be instituted on the date on which it is

presented to the latter court. In the present instance, however, it seems to me that Order 7, Rule 10 was really not applicable at all, as the Junior

Subordinate Judge had not come to any definite finding on the question of jurisdiction and was merely of opinion that there was just a possibility

that the case may be outside his jurisdiction. The plaintiff also had not asked for return of the plaint under that rule but had requested that the case

be transferred to a competent court. The proper course for the Junior Subordinate Judge would have been to move the District Judge to transfer

the case, but instead of doing so, he erroneously returned the plaint to be presented to the Senior Subordinate Judge. The Junior Subordinate

Judge has not expressly referred to Order 7, Rule 10 . C.P.C. and the certainly had no jurisdiction to act under that rule as he had come to no

definite finding that he had no jurisdiction to deal with the suit. There was also no question of any withdrawal of the first suit or fresh institution

thereof...... I hold that there was no fresh institution of the suit and the suit was merely t be continued in the court of the Senior Subordinate Judge.

This view is supported by the decision in Ganga Prasad v. Ramanand, (1915) 30 Ind Cas 544 = AIR 1915 All 344, in which the facts appear to

have been somewhat similar.

Though the facts of that case are not on all fours with the facts of the present case, the principle laid down in that ruling is applicable to the facts

of this case. Consequently, we hold that the plaint, which was presented in the Nagarcoil court, was only a continuation of the plaint, which had

been wrongly returned by the Tuticorin court. The proper date on which the plaint must be taken to have been filed is the date on which it was filed

in the Tuticorin court and that date falls well within the period of limitation. We, therefore, agree with the learned second appellate Judge and

dismiss this Letters Patent appeal with costs. Before parting with this case, we wish to record our appreciation of the able assistance rendered by

Mr. M. Srinivasan as amicus curiae.

Appeal dismissed.