Rajaram vs Vithabai and others

S.K. Dubey, J.—The defendant petitioner has preferred this revision against an order dated 31-7-1984 passed in Civil Suit No. 100-B of 1978 by Shri B.B.L. Agrawal, 7th Additional Judge to the Court of District Judge, Indore, whereby the plaintiff''s application u/s 14 of the Limitation Act, 1963 (for short, "the Act"), has been allowed and the time spent in prosecuting the suit in summary jurisdiction under order 37 of the CPC was excluded.

The facts material for the decision of this revision are as under:�

A suit was filed by the plaintiff-respondent before the District Judge, Indore, as summary suit under order 37, rule 1 CPC on 14-7-1976, for recovery of Rs. 10,000/- as principal advanced on 2-8-1970 on the basis of pro-note by the plaintiff to the defendants and Rs. 1,800/- as interest, in all Rs. 11,800/-. The suit was decreed ex-parte on 16-11-1976. On an application for setting aside the ex-parte decree (M.J.C. No. 37 of 1977) being filed by the defendants, by order dated 7-9-1977, the ex-parte decree was set aside. Thereafter, the plaintiff-respondent submitted an application for trying the suit as a regular suit. By order dated 26-6-1978, this prayer of the plaintiff-respondent No. 1 was allowed. However, in view of the distribution memo, and the valuation of the suit being Rs. 11,800/-, the District Judge ordered that the plaint should he returned to the plaintiff for presentation to the 4th Additional Judge to the Court of District Judge, Indore. The plaint was accordingly returned to the plaintiff with an endorsement on 28-6-1978. On that date, the plaint was presented by the plaintiff before the 4th Additional Judge to the Court of District Judge Indore. The defendants, en their appearance before the Additional District Judge, submitted an application on 30-8-1978 under order 7, rule 11 CPC for rejection of the plaint, as it was time-barred. In reply to this application dated 14-9-1978, the plaintiff stated all the aforesaid facts and prayed for the benefit u/s 14 of the Act and for exclusion of time. The learned trial Court rejected the plaint under order 7, rule 11 (d) CPC, vide its order dated 30th September, 1978 holding the suit to be barred by time. Against this, a first appeal was preferred before this Court, which was registered as First Appeal No. 3 of 1979. The said appeal came up for hearing before this Court and this Court observed that the trial Court omitted to hold an enquiry on the reply-cum-application filed by the plaintiff on the technical rules of procedure, which are intended to be a helmet to the administration of justice To avoid the technicality, the plaintiff-respondent No. 1 also filed an application before this Court u/s 14 of the Act on 20-4-1981. The petitioner filed a reply to this application on the same day before this Court when a copy of the application was supplied by the respondent No. 1. This Court remitted the case to the trial Court with a direction to hold an enquiry on the application u/s 14 of the Act and then to decide whether the plaintiff is entitled to the benefit u/s 14 of the Act or not. Paras 10 and 11 of the order of this Court in the said Appeal are material, which are quoted as under:�

It appears that the learned Additional District Judge has acted in oblivion of the aforesaid principles and appears to have acted as a silent spectator and permitted the defendants to allow successfully a trap for the plaintiff, as a trial of a suit is battle of wits. If the reply-cum-application submitted by the plaintiff before the trial Court on 14 9-1978 is perused, all the facts necessary to entitle the plaintiff to the benefit of S. 14 of the Limitation Act, have been stated therein. The only omission appears to be to make a submission to the effect that she had been "prosecuting the case with due diligence" and "in good faith" before the District Court. Generally speaking, good faith and due diligence are phenomena, which are deducible from facts averred and proved, if disputed. In view of the fact that facts averred in her reply-cum-application by the plaintiff were not admitted by the defendants and also in view of the fact that the omission to allege that prosecution of the case before the District Judge was with due diligence and good faith stands now rectified by moving a formal application (I. A. No. 1782/81) dated 20-4-1981 in this Court the interests of justice demand that a substantial cause should not be allowed to be defeated on failure to comply the technicalities in question.

Accordingly, the appeal deserves to be allowed and is hereby allowed. The impugned judgment and decree are set aside. Now the case will go back to the trial Court for holding an enquiry into the facts and grounds averred by the plaintiff in her reply-cum-application dated 14-9-1978, as also in I.A. 1782/81, dated 20-4-1981 on the basis of which exclusion of time under S. 14 of the Limitation Act is claimed. The learned Judge of the trial Court will, after affording the parties opportunity to lead evidence in support of their rival contentions, decide the question of availability of the bent fit of S. 14 of the Limitation Act de novo in accordance with law. In view of.......

When the matter reached the trial Court, on 14-10-82 the plaintiff examined her counsel. On 14-6-83, the defendant No. 1 examined himself. After recording of evidence, the trial Court held that the suit filed under order 37, rule 1 CPC was because of bona fide mistake of the counsel and the same was being prosecuted in good faith and with due care and caution and though the District Judge had jurisdiction to try the suit as a regular suit, but according to the distribution memo and the valuation of the suit, the District Judge returned the plaint for its presentation to proper Court. After the return of the plaint, the suit was filed on the same day in the Court of competent jurisdiction. The trial Court held that as the suit was not triable in the Court of summary jurisdiction, hence it was returned for its proper presentation, this mistake was a bona fide mistake and was a technical one, as the District Judge was also competent to entertain the suit as it is also a Court of original jurisdiction. For the technical mistake committed by the counsel for a party, a litigant cannot be penalised. After holding that, benefit of section 14 of the Act was given to the plaintiff and it was held that the suit cannot be rejected under order 7, rule 11 (d) of the CPC as barred by time. It is this order, which has been challenged by the petitioner.

Shri M.L. Sharma, learned counsel for the petitioner, contended that the trial Court committed an error in deciding the application of the plaintiff u/s 14 of the Act because unless the grounds for exemption from limitation are incorporated in the plaint, as required under order 7, rule 6 CPC, no benefit u/s 14 of the Act can be given. He further contended that the trial Court committed an error in considering that there was good faith on the part of the plaintiff-respondent No. 1 as the suit filed in the summary jurisdiction, was not with due care and diligence. "Good Faith" has to be construed and found from the facts of the case as defined u/s 2 (h) of the Act and not as defined to prove that she proceeded with her suit in summary jurisdiction bona fide and with due diligence. Learned counsel relied upon the proceedings in the earlier suit and contended that once the summary suit was dismissed in default. But at that stage, the defendant was not served. Thereafter, an ex-parte decree was passed, which was not set aside and when the defendant made his appearance, he demanded the copies of the documents, on which the plaintiff relied her suit but the plaintiff avoided and ultimately, applied for return of the plaint for presenting it to the regular Court. In such circumstances, it cannot be said that the plaintiff acted in good faith and with due diligence, care and caution. In support of his contentions, learned counsel placed reliance on the cases of the Apex Court and this Court and other High Courts, in Madhavrao Narayanrao Patwardhan Vs. Ramkrishna Govind Bhanu and Others, ; Satyadhyan Ghosal and Others Vs. Sm. Deorajin Debi and Another, ; Arjun Singh Vs. Mohindra Kumar and Others, ; Sri Amar Chand Inani Vs. The Union of India (UOI), ; Kashiram v. Santokhbai 1957 JLJ 827 ; AIR 1944 247 (Nagpur) ; Inderdeo Prasad Rai v. Deonarayan Mahton AIR 1946 Pat 301 and R.K. Janakiah Chetty Vs. A.K. Mohan, . Learned counsel for the petitioner also contended that the order of remand passed by this Court will not come in the way of the petitioner and others as it has not decided finally the matter but directed the trial Court to dispose of the application in accordance with law. Therefore, the said order will not be a res judicata against the defendants.

Shri K.S. Sisodiya, learned counsel for the plaintiff-respondent No. 1, contended that the trial Court has disposed of the application u/s 14 of the Act according to the directions as contained in the order of remand passed by this Court. A plea of exemption from limitation u/s 14 of the Act can also be decided by a separate application and it is not necessary to incorporate the same in the plaint under order 7, rule 6 CPC. Moreover, when there was a direction of this Court to dispose of the application, there was no jurisdiction vested in the trial Court to proceed with the case differently and to allow the amendment in the plaint as the jurisdiction of the Court depended upon the terms of the order of remand. After considering the application u/s 14 of the Act and after holding an enquiry the trial Court has come to a finding of fact that the earlier proceedings on institution of the suit in the summary jurisdiction, while the suit ought to have been tried as a regular suit, were in good faith and the plaintiff was prosecuting the same with due diligence. In fact the plaintiff cannot be penalised for the mistake of the counsel. It is the counsel, who could have advised the plaintiff to institute the said suit in the regular Court. Even though the suit was filed in the summary jurisdiction, the Court had jurisdiction to try it as a regular original suit but because of the distribution memo and the valuation of the suit, the said Court ordered return of the suit for proper presentation. It is not a case where the jurisdiction of the Court was barred or was expressly prohibited by law. Therefore, the finding arrived at on good faith and due diligence, cannot be interfered in revision.

After hearing the counsel I am of the opinion that the revision has no merit and deserves to be dismissed. It is settled law that when once the affected party submits to the order of remand and waives his right to object against such order, the said order cannot either be reagitated or challenged in the same Court. If the defendant-petitioner was aggrieved of the order when this Court remanded the case with a direction to dispose of the application u/s 14 of the Act, the petitioner ought to have approached the Apex Court but having not been done so, now at this stage, the defendant-petitioner cannot say that though this Court in the order of remand, ordered an enquiry on the application u/s 14 of the Act, but the said application could not have been enquired into without incorporating the grounds or reasons in the plaint, as required under order 7, R. 6 CPC. As the matter was concluded by the remand order, the only question left to the Court after the remand order was to hold an enquiry on the application under S. 14 of the Act. See Nain Singh Vs. Koonwarjee and Others, , State of Maharashtra Vs. Harishchandra and Others, & Gopal v. District Manager, M.P. Khadi and Village Industries Board and others 1985 JLJ 730. It is also settled that the Court, to which the case is remanded back, has to comply with the order of remand and any action not in compliance with the order of remand or acting contrary to the order of remand, is contrary to law. After remand, the jurisdiction of the lower Court depends upon the terms of the order of remand. Even the Court has no jurisdiction to entertain an application for allowing an amendment in the plaint if it is not directed in the order of remand. See Rameshwar Dayal Khandelwal v. Dr. Bhagwandas 1986 (2) MPWN 56, Shambhulal v. Union of India and another 1969 JLJ SN 46 and Rukhmanand v. Dinbandhu and others 1971 JLJ 159. Therefore, the contention of the learned counsel for the petitioner that the plaintiff ought to have pleaded the reasons for seeking benefit u/s 14 of the Act in the plaint, cannot be accepted. Moreover, from the facts of the case, it is apparent that the petitioner has not yet filed his written statement and has not drawn the attention of the Court that the plaintiff be directed to incorporate the reasons u/s 14 of the Act in the plaint and then an issue be framed and thereafter the said issue be decided as a preliminary issue Thus, the authorities relied on by the petitioner''s counsel have no application in the present facts and circumstances of the case.

The second contention of the learned counsel for petitioner is that the plaintiff has not acted in good faith in instituting the suit in the Court of the District Judge in summary jurisdiction under order 37 of the CPC and the plaintiff was not prosecuting the same with due diligence, can also not be accepted in view of the fact that after recording of evidence and after appreciation of the same, the trial Court has come to a finding that in the circumstances of the case, the suit was triable as a regular suit. For the regular suit also, the District Judge had jurisdiction to try the same, but because of the valuation of the suit and the distribution memo, the plaint was returned for presenting it to the Court of proper jurisdiction Therefore, this was merely a technical defect and for that technical defect in the jurisdiction of the Court, which occurred because of the bona fide mistake of the counsel for the plaintiff, the plaintiff cannot be penalised. In such set of facts, too strict a view against the plaintiff cannot be taken, because the Court has found due diligence and caution being findings of fact, cannot be interfered in revision. See The Managing Director (MIG) Hindustan Aeronautics Ltd. and Another, Balanagar Vs. Ajit Prasad Tarway, , Mst. Duliyabai and Others Vs. Vilayatali and Others, and Yeshwantrao v. Bhaskarrao Ganpatrao AIR 1959 Nag. 250 . Moreover, the application of the plaintiff u/s 14 of the Act cannot be thrown out on technical rules as the rules of procedure are intended to a helmet to the administration of justice. The Apex Court in India Electric Works Ltd. Vs. James Mantosh and Another, , has laid down that the provisions of section 14 of the Act are to be liberally construed. Therefore, in view of this decision also, when after the material placed by the parties in an enquiry on an application u/s 14 of the Act, the trial Court has come to a finding that the plaintiff has prosecuted the suit in the summary jurisdiction with good faith and with due diligence on the advice of the counsel, no interference can be made in revision.

In the result, this revision has no force and is accordingly dismissed with no order as to costs.