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Madras High Court
(Paitchaikala) Mangamma vs Nallamti Peda Ammanna on 23 November, 1926
Equivalent citations: AIR 1927 Mad 660
Author: Curgenven


Curgenven, J.

1. In the suit out of which this Civil Revision Petition arises an award was filed and the first defendant applied to have the award set aside. The learned Subordinate Judge has found that this application was made more than ten days after the award was filed, and that it was therefore out of date. In coming to this conclusion, he has failed to apply the provision in Section 12 (4) of the Limitation Act that in computing limitation for this purpose the time requisite for obtaining a copy of the award shall be excluded. It is admitted that, if this be done, the 1st defendant’s application would be within time.

2. I think it is clear that the learned Subordinate Judge’s error consisted in a failure to realise that the time taken to procure a copy was a relevent factor, and not as the petitioner here has endeavoured to argue, that he merely overlooked the circumstance that four days were so occupied. His error, in other words, was an error in applying the law of limitation and not an erroneous omission to consider facts which upon the view which he should have taken of the law, ought to have been considered. The question for me first to decide is therefore whether the dismissal of a claim on the ground that it is time barred amounts to a failure to exercise a jurisdiction with which the Court is vested, so that Section 115 Code of Civil Prodedure will enable the order to be revised.

3. The meaning of the word “jurisdiction” in this section has been considered by Woodroffe, J., in Shew Prosad v. Ramchandar [1914] 41 Cal. 323 The term, according to one view he says:

is here used in the ordinary sense, that is a jurisdiction local, pecuniary, personal or with reference to the subject matter of the suit.

4. The other view is that:

the term may mean the legal authority in a case over which it has jurisdiction in the sense stated

5. The learned Judge expresses a preference for the former construction and it appears to me that it is the construction which forms the basis of a large preponderance of the decisions upon this point. To accept the alternative construction, and to hold, for instance, that a Court which dismissed a claim as time barred fails to exercise a jurisdiction vested in it by law, would entail the position that wherever a Court allows or rejects a claim upon an erroneous view of law it acts in excess of, or in defect of jurisdiction and its decision would be open to revision. The distinction is brought out when we consider the appropriate procedure. A Court which denies that it has jurisdiction to try a suit returns the plaint. If it admits jurisdiction, it proceeds to record a decision. Whatever the issues between the parties, if the Court has jurisdiction to decide them no question of jurisdiction arises out of the manner of the decision. And in the former case unlike the latter no issue can become res judicata.

6. This is in accordance with the view of the Judicial Committee in Amir Hassan Khan v. Sheo Baksh Singh [1885] 11 Cal. 6 and that decision has been followed in a large number of cases in this country: Ramgopal v. Jaharmall [1912] 39 Cal. 473 Jhotu Lal Ghose v. Ganousi Sahu [1918] 3 Pat. L. J. 376 Bibi Zainab v. Parasnath A. I. R. 1924 Patna 37 Sundar Singh v. Doru Shankar [1897] 20 All. 78 In this Court I may refer to Kuppuswami Aiyangar v. Narayana Aiyangar [1914] 1 L. W. 855 decided by Hannay whose view was accepted by a Bench in Letters Patent Appeal [Kuppuswami Aiyangar v. Narayana Aiyangar] [1916] 3 M. L. W. 36 A contrary view, it is said, was taken by Spencer and Venkatasubba Rao, JJ., in the British India Steam Navigation Co. v. Shareally A. I. R. 1923 Mad. 435 The question that arose there related to the rejection as time barred by the Presidency Small Cause Court of an application for a retrial of a Small Cause suit and Spencer, J, who alone discussed the point, based his conclusion on the ground that the decision, if it had been erroneous, would have involved a refusal by the Court to deal with a petition made to it. In this he followed the Full Bench ruling in Sundaram v.Mansa Mavuthar A. I. R. 1921 Mad. 157 where again there was a refusal to deal with a petition on the ground that the petitioner had not the right to apply. Such cases are, I think, clearly distinguishable from such a one as the present, where the application is entertained and dismissed as out of time. No other case decided by a Bench of this Court has been cited in which it has been held that an erroneous decision upon a question of limitation or upon any question of a like nature affords ground for the exercise of revisional powers. I conlude accordingly that the Civil Revision Petition must be dismissed, and I dismiss it with costs.

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