Deo Prosad Sing vs Pertab Kairee on 15 August, 1883

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Calcutta High Court
Deo Prosad Sing vs Pertab Kairee on 15 August, 1883
Equivalent citations: (1884) ILR 10 Cal 86
Author: Mitter
Bench: Mitter, Tottenham


Mitter, J.

1. This is a suit for possession of land covered by a kobala, dated the 31st October 1867; executed in favour of the plaintiff. The lower Courts find that the period of limitation in this case must be counted from the date of the kobala. This finding has not been questioned before us.

2. The suit was brought on the 14th April 1881, i.e., more than twelve years from the date of the kobala, and unless the time during which another suit relating to the subject-matter in dispute was pending be deducted, the claim is clearly barred by limitation.

3. It appears that the plaintiff, on the 2nd September 1869, brought a suit against the defendant and several other persons, for the recovery of possession of a plot of land, including the land in suit, and obtained a decree in the Court of First Instance. On appeal it was found that the plaintiff had joined together several causes of action. The Appellate Court, on the 30th March 1881, confirmed the decree as regards one of these causes of action, and dismissed the suit as against the present defendant and others on the ground of misjoinder of several causes of action.

4. The question which we have to decide is whether, under Section 14 of the present Limitation Act, the plaintiff is entitled to have the deduction of the time during which the former suit was pending. The District Judge, disagreeing with the Munsif, is of opinion that the plaintiff is not entitled to the deduction.

5. So far as the question before us is concerned, the language of the 14th

section of the present Limitation Act is similar to the language of the 14th Section of Act XIV of 1859, with this exception that, after the words “other cause,” the words of a like nature have been added in the former Act. But in the Full Bench decision of Chunder Madhub Chuckerbutty v. Ram Coomar Chowdry B.L.R. Sup. Vol. 553 : 6 W.R. 184 Sir Barnes Peacock, C.J. held that in Section 14 of Act XIV of 1859 the words “other cause” meant other cause of a like nature. The cases decided under Act XIV of 1859, with reference to this point, will therefore be of help to us in determining the question before us.

6. The District Judge is of opinion that misjoinder of parties is not a cause “of a like nature” with defect of jurisdiction, because it was in the plaintiff’s own power to avoid it. But it is equally in the plaintiff’s own power to avoid suing in a Court which, for defective jurisdiction, is unable to entertain it. This is not, therefore, the correct test for determining the question, whether an alleged cause is one of a like nature with defective jurisdiction or not. For this reason we are unable to follow the decision of the Allahabad High Court in Ram Sabhag Das v. Gobind Prasad I.L.R. 2 All. 622 cited by the Judge.

7. It appears to us that “misjoinder of parties” and “defective jurisdiction” are causes of a similar nature. In Mohun Chunder Koondo v. Azam Gazee 12 W.R. 45 Sir Barnes Peacock, C.J. held that bringing a suit against a person who bad died before the suit was instituted was a cause of a similar nature within the meaning of Section 14 of Act XIV of 1859. In the case under our consideration the similarity is certainly greater than it was in the case just cited. There, in the former suit, the plaintiff obtained a decree in the Court of First Instance. It is therefore reasonable to hold that the first suit was instituted in good faith, and prosecuted with due diligence. The present suit is, therefore not barred by limitation.

8. We reverse the decision of the lower Appellate Court, and remand the case to that Court for the determination of the other questions arising in it.

9. The costs will abide the result.

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