Mohamed Sali vs Siluvai Arikkanjir Fernande (died) and Others

A. Alagiriswami, J.—The defendant is the appellant. The question that arises in this case is one of limitation. The defendant executed, the suit

promissory note on 22nd July, 1955. The suit was filed originally in the Court of the District Munsif, Tuticorin on 22nd July, 1958, that is, on the

last day of limitation . The defendant contended that Court had no jurisdiction to try the suit. Thereupon, the plaintiff endorsed on the back of the

plaint that the plaint may be returned to him for presentation to the Court at Nagercoil where the defendant resides. As a result of the endorsement

the plaint was returned on 6th August, 1959, and it was re-presented in the Court of the District Munsif, Nagercoil, on 19th August, 1959. The

trial Court dismissed the suit holding that the suit was barred by limitation . The lower appellate Court has allowed the appeal and decreed the suit.

It is not disputed that the period during which the suit was pending in the District Munsif''s Court, Tuticorin as well as the period, between the

day when the District Munsif, Tuticorin, ordered the return of the plaint for presentation to the proper Court and 6th August, 1959, the day on

which the plaint was taken return of by the plaintiff''s Advocate is properly deductible for the purpose of computing the period of limitation. But it is

contended that the period between 6th August, 1959 the day on which the plaintiff''s Advocate took return of the plaint and 19th August, 1959 the

day on which the plaint was re-presented to the District Munsiff''s Court at Nagercoil, cannot be so deducted and that the plaintiff''s suit is,

therefore, barred by limitation. The Courts below have found that the promissory note was executed at Tuticorin and that means that the suit was

properly instituted in the Court of District Munsif, Tuticorin, in the first instance.

On behalf of the respondent, the contention is that the return of the plaint for re-presentation to the District Munsif''s Court. Nagercoil, was

wrong and the suit should be deemed to be pending in the Tuticorin Munsif''s Court till the plaint was re-presented to the Court at Nagercoil. This

is a peculiar case where both the Courts have got jurisdiction to try the suit. But it is urged on behalf of the appellant that the order of the learned

District Munsif of Tuticorin returning the plaint for presentation to the proper Court, even if wrong, is res judicata and the respondent cannot now

raise the question that that order was wrong and that, therefore, the suit should be deemed to be pending in the District Munsif''s Court, Tuticorin.

The first point to note is that there was no decision as such by the District Munsif, Tuticorin, that he had no jurisdiction to try the suit. It was only

on the plaintiff saying that the plaint may be returned to him for re-presentation to the Court of the District Munsif, Nagercoil, within whose

jurisdiction the defendant resides, that the plaint was returned. Moreover we are not now deciding that the Court at Tuticorin had jurisdiction

contrary to the earlier finding of that Court to the contrary for the purpose of deciding whether the decree has been passed by a Court having

jurisdiction or not. It is only to enable us to decide whether the suit should be deemed pending in the Court of the District Munsif, Tuticorin that we

have to decide whether that Court had jurisdiction to entertain the suit. There is no doubt that the Court of District Munsif, Tuticorin, did have the

jurisdiction to entertain the suit. The wrong order of the learned District Munsif, Tuticorin returning the plaint, cannot, therefore, be res judicata

even for the purpose of deciding the question of limitation. We cannot consider whether the Court of the District Munsif, Tuticorin had jurisdiction

or not. On the very question of jurisdiction itself, possibly, the decision of the learned District Munsif, Tuticorin, may be res judicata. But for the

purpose of deciding the question of limitation and for deciding the question that arises incidentally for the purpose of deciding the question of

limitation, it cannot be said that the decision of the learned District Munsif, Tuticorin, is res judicata; nor can it be said that the plaintiff is estopped

from contending that the Court of the District Munsif, Tuticorin, had jurisdiction. The parties cannot by consent confer jurisdiction on a Court

which did not have jurisdiction. Ledgard v. Bull (1885) 13 I.A. 134. Similarly, parties cannot by consent take away the jurisdiction of a Court. It is

open to them to agree that of two Courts having jurisdiction the suit should be instituted only in one of them. The present case can even be brought

under that rule. It cannot, in any case, be said that, either because the plaintiff wanted the plaint to be returned to him for re-presentation to the

proper Court or because of the order of the learned District Munsif of Tuticorin returning the plaint, consequent on that request, the plaintiff is

debarred from contending that the Court of the District Munsif, Tuticorin, had jurisdiction, especially for deciding the question whether the suit is

within time. Therefore, the decision of the Supreme Court in Mohanlal Goenka Vs. Benoy Krishna Mukherjee and Others, cannot apply to this

case. There is no doubt as held in that case that even an erroneous decision on a question of law operates as res judicata between the parties to it

and that the correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata. But here

there was no decision on a question, of law. The decision in Thadi Chandrayya and Others Vs. Vaitla Seethanna and Another, , is not relevant for

the purpose of this case because there the suit was filed in the first instance in a Court which had no jurisdiction. The decision in Ramdutt V. E. D.

Sassoon & Co. (1929) 56 M.L.J. 614 : 56 I.A. 128 : AIR 1929 P.C. 103, that where a suit has been instituted in a Court which is found to have

no jurisdiction and it is found necessary to raise a second suit in a Court of proper jurisdiction, the second suit cannot be regarded as a

continuation of the first, even though the subject-matter and the parties to the suits were identical, does not apply to this case either. So also the

decision in Seshagiri Row v. Velayudan Pillai (1913)22 M.L.J. 377 : ILR 36 Mad. 482.

The lower appellate Court was undoubtedly right in relying upon the decision in Nandlal Singh and Another Vs. Mt. Baratan and Others, , In

that case the suit was first instituted in the Court of the First Munsif. That Munsif ordered the return of the plaint on 21st April, 1952. The pleader

for the plaintiff took return of it on 23rd April, 1953 and it was re-filed in the Court of the Second Munsif on 23rd April, 1953 itself. The only

question that was decided in that case was that the gap of two days during which the plaint had remained in the custody of the lawyer for the

plaintiff did not have the effect as if the suit which the plaintiff had originally filed in the Court of the First Munsif had terminated and a fresh suit had

been filed when the plaint was presented in the other Court two days after its return. In the present case it is not disputed that the time taken,

between the date of the order of the District Munsif of Tuticorin returning the plaint for re-presentation to the proper Court on 28th July, 1959 and

6th August, 1959 on which day the plaintiff''s pleader took a return of it, is deductable for the purpose of computing the limitation. But in discussing

this question the learned Judge held as follows:

But as I have already observed above, having regard to the position that in law the plaintiffs must be held to have rightly filed the plaint originally in

the right Court which had full jurisdiction to try it, the plaintiffs cannot be prejudiced by any subsequent illegal order of the Munsif in returning the

plaint for re-filing it in another Court. It is true that the plaintiffs did not raise any objection to this order of the learned Munsif and their lawyer

actually received back the plaint and re-filed it, but these facts, in my opinion, cannot alter the position that the suit must be deemed to have been

filed within time in the right Court. I also think that in the circumstances of the case it shall be deemed that the suit had remained pending

throughout.

It is a well-known proposition of law that a wrong order of the Court cannot act to the prejudice of litigants. Therefore, the wrong order of the

District Munsif, Tuticorin, returning the plaint for presentation to the proper Court cannot be held to prejudice the plaintiff in this case. The suit

should be deemed to be pending throughout in the right Court whether it be the Court of the District Munsif, Tuticorin or the Court of the District

Munsif, Nagercoil. The suit is not, therefore, barred by limitation. There are no merits in this Second Appeal and it is, accordingly, dismissed with

costs.

Leave granted.