Sucharu Prova Ghosh vs Chandi Charan Bardhan

P.N. Mookherjee, J.—This appeal raises an interesting question of law. The Appellant is the widow of one Baranashi Kumar Ghose. The latter died sometime towards the end of November, 1947. Prior to his death, he borrowed Rs. 1,000 from the Respondent on a handnote, dated June 22, 1945. This loan has remained unpaid and it is this loan which is the subject-matter of the present suit.

On January 26, 1948, the Respondent instituted a suit'' (Money Suit No. 2 of 1948) for recovery of his dues on the said handnote. At the time of institution of the suit the Plaintiff (Respondent) was unaware of Baranashi''s death and he brought the suit against Baranashi. Eventually, however, on April 7, 1948, that suit was struck off by the court when it was found from the peon''s report that Baranashi had died prior to its institution. Thereafter, on September 2, 1948, the present suit was instituted against the Defendant-Appellant who is Baranashi''s widow and his sole heiress and legal representative. This suit was prima facie time-barred as it was instituted beyond the statutory period of three years as provided in the relevant article (Article 57 or 59) of the Indian Limitation Act. The Plaintiff, however, claimed the benefit of Section 14 of the Act for saving the suit from the bar of limitation.

There is no dispute that, if, in the computation of the period of limitation, the time, during which the previous unsuccessful suit (Money Suit No. 2 of 1948) remained pending, be excluded or deducted, the present suit would be well within time. But the question is whether the Plaintiff is entitled to such exclusion or deduction.

As already indicated, the Plaintiff claims to save limitation by appealing to Section 14 of the Indian Limitation Act. To attract that section, however, to the present case and to entitle the Plaintiff to the necessary extension of time and deduction or exclusion of the requisite period, two primary conditions required to be fulfilled, namely, (1) that the Plaintiff presented the earlier suit "in good faith" and "with due diligence", and (2) that the court, on the earlier occasion, was "unable to "entertain it" (the said suit) from "defect of jurisdiction or "other cause of a like nature".

On the first of these conditions the learned munsif held against the Plaintiff and, accordingly, he refused the Plaintiff the benefit of Section 14. It was unnecessary for him to consider the second condition and he expressed no opinion on that question. Section 14 being out of the picture, the suit failed on the ground of limitation, although, on the merits the learned munsif was inclined to hold in favour of the Plaintiff.

The Plaintiff appealed to the learned District Judge. That appeal succeeded and the learned Additional District Judge who eventually heard it accepted the Plaintiff''s case that the previous suit was prosecuted by him "in good faith" and "with "due diligence" and was struck off by the court only because it was "unable to entertain it" from defect of jurisdiction or other cause of a like nature, as mentioned in Section 14 of the Indian Limitation Act. The appeal was, accordingly, allowed, the defence plea of limitation was overruled and the Plaintiff''s suit was decreed. Hence this second appeal by the Defendant.

The construction of Section 14 of the Indian Limitation Act has not always been easy or uniform but, generally speaking the section has received a wide and liberal interpretation, so far at least as the relevant phrase "defect of jurisdiction or other cause "of a like nature" is concerned. In Mohun Chunder Koondoo v. Azeem Gazee Chowkeedar (1869) 12 W.R. 45 decided about a century back, the cognate phrase in corresponding section of the earlier Limitation Act of 1859, then in force, was interpreted as comprehending a defect or cause, arising from the fact that the person sued had died before the institution of the suit, and the section was held applicable provided the other conditions of its application, including the requirement of "good faith" and "due diligence", were satisfied. That decision which was given by a Bench, consisting of Sir Barnes Peacock, C.J., and Dwarka Nath Mitter, J., has almost always been followed, even in matters arising under the present Section 14, although, as I shall presently notice, there is some difference in the phraseology of this section as appearing in the earlier enactment and in the enactment'' now in force, and the authority or correctness of that decision has seldom been questioned, so far at least as this Court is concerned. On occasions, no doubt, that decision was distinguished by learned Judges where, for example, the proceedings were one and the same and not two proceedings which term obviously includes suits-as contemplated by the section; but that distinction is clearly not available in the present case. There was undoubtedly an earlier suit "on the same cause of "action" by the same Plaintiff against the "Defendant" (vide, Section 2(4) of the Act.) followed by the present suit. It is unnecessary, therefore, to consider the cases where the decision (1) of Peacock, C.J., and Mitter, J., was distinguished. On the authority of that leading case (1) which seems to me to be sufficiently similar to the present case, I would hold that the Plaintiff would be entitled to the benefit of Section 14, provided only he has succeeded in showing that he prosecuted the earlier suit "in good faith" and "with due diligence".

This latter question has been answered in his favour by the learned Additional District Judge and, on the materials before me, I am not inclined to differ from him. The evidence shows and that has been accepted by the learned Additional District Judge-that the Plaintiff met Baranashi shortly before the institution of the earlier suit and that he was quite unaware of the latter''s death when he filed that suit. The learned munsif was of the opinion that the Plaintiff, when he brought his said suit, ought to have ascertained first whether the Defendant Baranashi was alive and the absence of such enquiry showed want of due diligence on his part. I do not think that such a rigid test should be applied in regard to such matters. It is too much to say that common prudence and normal diligence require that, in every case, the Plaintiff before he institutes his suit, must make enquiries whether the Defendant is alive or not. In my opinion, this question of "due diligence" and "good faith" depends on the circumstances of each particular case. Baranashi and the present Plaintiff were not neighbours or residents of the same locality or even of neighbouring areas. They met shortly before the earlier suit. There is nothing to indicate that the Plaintiff had any knowledge of Baranashi''s death at the time when he instituted his previous suit. There are also no circumstances here which even tend to show that the Plaintiff was or ought to have been put on enquiry in the matter. The earlier suit was filed and proceeded with in the normal manner and in the normal course of business. I do not think that, in the circumstances of this case, there was any want of reasonable care or diligence on the part of the Plaintiff in the matter of institution or prosecution of the earlier suit. I hold, therefore, that the learned Additional District Judge was perfectly justified in finding the necessary "good faith" and "due "diligence" in favour of the Plaintiff. Clearly, therefore, he (the Plaintiff) is entitled to invoke Section 14-Sub-section (1) of the section, to be precise, of the Indian Limitation Act to his aid and to get rid of the bar of limitation with the help of the said provision.

I have relied upon the decision of this Court Mohun Chunder Koondoo v. Azeem Gazee Chowkeedar (1), pronounced as I have already said, about a century back, but, as already pointed out the soundness of this part of the decision of the case cited has practically stood unchallenged and, if I may respectfully add, the principle, underlying the said decision was categorically re-affirmed in Veerappa Chetty v. Tindal Ponnen ILR (1907) Mad. 86, 88 and also cited with approval in the well-known treatise on Limitation and Prescription (Tagore Law Lectures) of Upendra Nath Mitra (vide, p. 268, 7th (1949) Edition, and pp. 970-971, 6th (1932) Edition) and also by Dr. Pal in his work on Limitation (pp. 230 and 244-245). It is quite true as already stated, that the relevant statutory provision (Section 14 of the Indian Limitation Act) has undergone some change in phraseology since the decision in the 12 W.R. case in that the words "unable to decide upon it" have been replaced by the words "unable to entertain it"; but that change is of no material consequence. The effect of that change was considered by the learned Judges (Wallis and Miller, JJ.) of the Madras High Court in Veerappa Chetty v. Tindal Ponnen (2), where, on a review of the entire matter, they came to the definite conclusion, that the altered phraseology had introduced no change in the ultimate legal position. With that view I entirely agree. When, in Mohun Chunder''s case (1), Peacock, C.J., said (vide, p. 46) that "the court had no jurisdiction to decide upon the "case" he obviously meant that it had no jurisdiction to entertain the suit. It follows, therefore, that the court has no jurisdiction "to entertain a suit" against a dead person and, when a suit is struck off or dismissed by the court on the ground simpliciter that it had been instituted against a dead person, the case is brought well within the words "from defect of "jurisdiction or other cause of a like nature is unable to entertain "it", as used in Section 14 of the Indian Limitation Act.

My conclusion, therefore, is that the Plaintiff-Respondent has succeeded in proving the necessary "good faith" and "due "diligence" and he has also succeeded in showing that, on the previous occasion, the court was "unable to entertain" his suit, "founded on the same cause of action" against the Defendant that is, Baranashi "from or through whom the (present) "Defendant derives his (her) liability to be sued" (vide, Section 2(4)), "from defect of jurisdiction or other cause of a like nature". The Plaintiff is therefore, entitled to the necessary deduction or exclusion of time and his present suit is saved from limitation by reason of Section 14 or, Sub-section (1) of that section, to be more precise, of the Indian Limitation Act.

In the above view of the matter, the Plaintiff is entitled to a decree although its execution must be limited to Baranashi''s assets in the Defendant''s hands. The Defendant''s liability for the Plaintiff''s dues is only in her capacity as her husband''s (Baranashi) legal representative and she will be liable only to the extent of his assets in her hands. To avoid future complications this ought to be made clear in the decree and a provision to that effect should be inserted therein. The lower appellate court granted the Defendant three equal annual instalments for the payment of the decretal dues, the instalments being "due in" May of the years 1953, 1954 and 1955". Having considered the circumstances of the parties, it seems to me that the Defendant should be given a little more time and, accordingly, I allow her four annual instalments for the payment of the dues (including costs), now decreed by me. Costs decreed will be the costs of the trial court only. The instalments will be of Rs. 354-14-9 to be paid-within December of this year, and of Rs. 400 each payable within December of the three following years 1955, 1956 and 1957, respectively. In default of payment of any one of these instalments, the dues under that instalment will be recoverable by execution. The total dues under the decree, as I have already calculated above, will be Rs, 1,554-14-9 including the costs of the trial court, decreed to the Plaintiff.

Subject to what I have said above, this appeal fails and it is dismissed.

In the special circumstances of this case I direct that the Plaintiff will get his costs of the trial court as part of the decree but, in this Court and in the court of appeal below, the parties will bear their own costs.